THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW /f ^/. /f^- A TREATISE ON THE PROBATE PRACTICE AND LAW OF ESTATES IN THE STATE OF ILLINOIS RELATING TO THE ADMINISTRATION, SETTLEMENT AND DISTRIBUTION OF TESTATE AND INTES- TATE ESTATES WITH TESTAMENTARY WRITINGS AND FORMS By FRANKLIN P. SIMONS OF THE CHICAGO BAR VOLUME I. CHICAGO CALLAGHAN & COMPANY 1907 Copyright 1907 BY CAIvLAGHAN & COMPANY T PREFACE This work has been prepared to meet the requirements of the lawyer, the representatives and others interested in the admin- istration, settlement and distribution of estates. What appeared to be lacking in Illinois and other states, was a practical compilation and arrangement of the law and procedure relating to testate and intestate estates. For many years the statutory enactments of the different states have been considered the fundamental law governing the practice and procedure in courts of probate. These enactments apply to executors, administrators, guardians and conservators, and generally define the duties and powers of such not expressed by will or testament; but in those states where the common law is still in force the powers and duties of such represent- atives are enlarged by the statute, which, with the common law, may and often does extend the same. The works by Jarman, Redfield, Woerner, Perry, Story, Pomeroy and others contain much of value that may be ap- plied during the administration of any estate ; but these works also contain much of no value to the lawyer and others who must depend to a great extent upon the statutory enact- ments of the different states and the well considered cases handed down by the courts of final determination. The stat- ute and case law, when all is said, are the proper weapons with which to meet the varied and important questions that usually arise during the administration of a large and important estate. We have in this work quoted liberally from the books of standard text writers ; but in doing this we have been greatly aided by the decisions of courts citing with approval those authors, not in conflict with one another, or the well consid- iii 735974 27 PREFACE. ered opinions of courts, from which the doctrine and rules laid down by text writers have been largely taken. It is recognized as true, that most if not all property real and personal, in some form or other, must pass through admin- istration once in every generation ; and it is probably true that in each generation, new and additional legislation in the vari- ous states enlarge the duties of those selected to administer estates; these new enactments also enlarge the powers and jurisdiction of courts of probate. In Illinois in recent years many important changes relating to the administration of estates have been made by the legislature. New and complex questions arise as wealth and population increases, as evi- denced by the Inheritance tax law and the "Torrens" sys- tem of land titles, one of the principal objects of which law was to bring in time all estates under that system. In arranging the chapters and sections of this work, the subjects relating to testate and intestate estates have been considered in their proper order. The statutes of Illinois have been quoted freely and generously, and where the .statute is conclusive in any matter, the application is made and sup- ported by the cases cited. Where the statute modifies the common law, or where the latter entirely controls the subject treated, such is supported by the decisions of courts giving the doctrine and rule in support of the subject. Each section of the Illinois statute as compiled by Starr & Curtis, with Jones & Addington's supplements thereto, also Kurd's statute of 1905, relating to Wills, Administration, Descent, Dower and Homestead, Husband and Wife, Conveyances, Guardian and Ward, Conservators, Evidence, etc., has either been copied or its substance stated. A large number of forms embracing those likely to be of use can be found at the end of the second volume, with a sep- arate index attached, referring to each form by number. Also attached to most of the forms are foot notes to guide in the use of the same, with citations to which the form has reference. In preparing the forms, we have used those prescribed by the PREFACE. ▼ statute of Illinois, also those forms adopted, used and applied in the extensive proceedings relating to estates in the county and probate courts of Cook county. We have used freely with the aid and assistance of the Hon. Charles S. Cutting, Judge of the Probate Court of Cook county, Illinois, the orders en- tered of record in such court, that for many years have been approved by the practice in such court and the courts review- ing the records and proceedings thereof. We should consider this preface incomplete if we failed to call special attention to the importance of the courts of pro- bate, which necessarily produce some of the most important litigation known to the history of jurisprudence. The im- mense volume of business transacted by these courts, partic- ularly that of Cook county, is generally well conducted by such courts within the powers granted and implied under present legislative enactments. The general public sentiment is always in favor of granting to these courts full and ample power to meet every emergency that may arise in the adminis- tration of every estate. Modern legislation must aim to accom- plish through these courts of probate, a rapid legal and equitable system looking to the complete settlement and dis- tribution of all estates. Additional and extended power should be granted such courts at the earliest possible session of the legislature to administer testamentary trusts created by will. Such legislation is now absolutely needed in order that negligent trustees may be held to account quickly in aid of the trust created in such instrument. In Appendix I will be found paragraphs from the wills of noted persons, devising large estates to trustees for charitable and other public purposes. These wills are valuable aids to the lawyer and others as evidence of the best type of testa- mentary writings. F. P. S. Chicago, May, 1907. TABLE OF CONTENTS VOLUME L CHAPTER I. THE PROBATE COURT. Constitution of 1870 relating to such court. The act of the legisla- ture establishing such court. Election of Judge. Jurisdiction- Duties of SheriH and Clerk. Interchange of County and Probate Judges. CHAPTER II. JURISDICTION OP PROBATE COURTS. How far recognized in law and equity. Federal Courts take jurisdic- tion in matter of estates, when, etc. CHAPTER III. DESCENT AND DISTRIBUTION. Rules of descent. Lineal consanguinity. Lineal heirs. Will may modify and completely change course of statutory descent Post- humous child, illegitimates, child born after will made. Legiti- matized child. Effect of marriage upon illegitimate, etc. When there is a surviving wife or husband but no issue. Advancements, rules applying to. Distribution of undivided estates. CHAPTER IV. WILLS. Who may make and devise property. The statute of Illinois relating to the making of wills. Fundamental and necessary requisites of a valid will. Women under the statute relating to wills. When the will or testament is the act of another mind. Testator or testatrix deprived of free agency, effect of, etc. Acknowledging and attesting of wills. CHAPTER V. WILLS CONTINUED. Nuncupative, joint and mutual wills. Revocation of wills. When codicil revokes. After born and adopted child have effect upon will. Intention to disinherit. Erasure of part of will, effect. vii Viii TABLE OF CONTENTS. CHAPTER VI. PROBATING WILLS IN COURTS OF PROBATE. Petition for such purpose must state facts truthfully. For fraud or lack of jurisdiction order admitting will to probate may be set aside. Witnesses to will. When such are dead. Lost will, how established. Copies of will evidence. Foreign will admitted to probate, authentication of such will. Notice of foreign will to adverse interest. Place of probate. CHAPTER VIL CONTEST OF WILL IN PROBATE COURT. Statutory duty relating to — defined. Appeals from order allowing or refusing probate of will. The practice in appeals. Burden of proof. Concurrent and cumulative remedies. CHAPTER VIII. CONSTRUCTION OF WILLS. Powers of disposition and limitations thereon. Words used construed under established rule. Rules governing the meaning of words in their ordinary and technical legal sense. What estate conveyed. Words of inheritance. Quantity of interest Rule when instrument doubtful. Precatory words, etc. CHAPTER IX. CONSTRUCTION OF WILLS CONTINUED. Ancient rules of construction. Modification of such rules. American principles of construction and interpretation. CHAPTER X. • CONSTRUCTION OF WILLS CONTINUED. Modem rules relating to construction emanate largely from American courts. Fundamental rule to give effect to intention where pos- sible under existing law. Ninety-six modem rules compiled in this chapter to give effect to intention. TABLE OF CONTENTS. ix CHAPTER XL CONTEST OF WILLS IN CHANCERY. The issue of fact. Interested persons only can proceed in chancery. Trial by jury. Jury may be waived. Contents of lost or destroyed will, how established. Secondary evidence. Expert witnesses. Statements and declarations before and after making will, effect of. Testamentary capacity. Sound mind and memory. Effect of old age upon testamentary capacity. Fraud compulsion or im- proper conduct Advice, argument or persuasion, CHAPTER XII. TRUSTS AND TRUSTEES. Who may be trustee. Who are held to be under the law. Trustees de son tort. The rule in appointing trustees. The same person appointed executor and trustee. Resulting trusts. Constructive trusts. Trusts by implication or operation of law. Trusts ex malificia. Spendthrift trust. Conveyance to Uses. Perpetuities. Equitable conversion. Relation of creditor and remainder-man to doctrine. CHAPTER XIII. TRUST AND TRUSTEES CONTINUED. Collective trusts. Trustee cannot delegate trust, and when accepted cannot renounce. Must seek discharge from court appointing. Powers coupled with interest Title of trustees to land. Must defend and protect title. Cannot create lien on assets held. Rea- sonable care and diligence exacted. Trustee guilty of fraud or willful default Tracing and restoring trust funds. Duty to col- lect assets. Must keep clear and accurate accounts. Cannot pur- chase at his own sale. Cannot make profits from trust property. What considered proper and improper investment of trust funds. Intermeddlers, etc. CHAPTER XIV. GIFTS CAUSA MORTIS AND INTER VIVOS. Principal requisites necessary to constitute. Who may make such gifts. May be made to one in trust All the legal elements must center in gift A gift inter vivos. Distinction between such and causa mortis. Right of dower, homestead and awards can not be effected by. X TABLE OF CONTENTS. CHAPTER XV. INHERITANCE TAX LAW OF ILLINOIS. Rate of tax. Who come under. Tax, when, how, and by whom paid. What institutions exempt from tax. When real estate liable to tax. When portion of tax repaid to legatee, refund. When tax paid erroneously, how recovered. Appraisers. Expense of pro- ceeding. Books to be kept. Treasurer's receipt. Proceedings to test whether property liable to tax, etc. CHAPTER XVI. LAND TITLES "TORRENS LAW." Tlie act extended to executors and administrators, unless excused by probate court. Intended in time to bring under system all real estate of a deceased party. Applications to be referred to examiner who holds the same relation to court as a Master in Chancery. CHAPTER XVn. ADMINISTRATION. Necessity of. Different administrators defined. CHAPTER XVIII. ADMINISTRATION CONTINUED. Granting letters testamentary and of administration. Executor's ajid custodian's duty to present will for probate. Age and qualifica- tion of executor. Power and liability of such before probate of will. Death — failure of part of executors to qualify. Removal of executors or administrators to different counties. Form of letter prescribed by the statute of Illinois. CHAPTER XIX. ADMINISTRATORS TO COLLECT. Powers of such. Termination of powers and duties of such. CHAPTER XX. PUBLIC ADMINISTRATORS. Governor of state appoints. When such may administer an estate. Disposition of unclaimed estate by such, etc. TABLE OF CONTENTS. xi CHAPTER XXI. GRANTING LETTERS OF ADMINISTRATION. Application of statute in that regard. Powers and duties of administra- tors. Form of letters, oath of office. Revoking letters and remov- ing executors and administrators from office. Bonds, security, counter security. New bonds, etc. Resignation of executor or administrator under statute, settlement, costs, etc. Foreign execu- tor, powers, duties, etc. CHAPTER XXII. INVENTORIES AND APPRAISEMENTS. What are personal assets. Inventory as evidence. When assets do not exceed widow's allowance. CHAPTER XXIII. CLAIMS AGAINST ESTATES. The mode of filing such. Equitable and legal powers of probate courts in such matter. Allowance of claim, hearing, etc. Heir's right to contest claims. Execution does not issue against representatives. Effect of judgment recovered in another state. Proceedings in Federal court to establish claim. Rule of that court in such mat- ter as to order of judgment. Adjudication and judgment in pro- bate court. Claims of representatives against their estate. Ap- pointment of person to defend estate. Classifying claims, order of payment, etc. CHAPTER XXIV. AWARDS TO WIDOWS AND CHILDREN. Appraisers in such matter to consider conditions and mode of living widow accustomed to at time of husband's death. Administrator's duty in relation to awards. When the widow has and has not a lien upon the real estate of deceased for payment of award. Legal release of award, when and when it cannot be accomplished. Ante nuptial contract, may or may not be a bar to award to widow. 3Qi TABLE OF CONTENTS. CHAPTER XXV. COLLECTION AND DISPOSITION OF ASSETS OF AN ESTATE. Concealment of effects of deceased. Discovery of assets, proceedings to recover. Title sometimes involved in such proceeding. Legal pre- sumption of title to property belonging to deceased, is in favor of legal representative. Proof must overcome ttiat presumption. CHAPTER XXVI. PARTNERSHIP ESTATES. Duty of surviving partner. Surviving partner should not be appointed administrator. Rights and liabilities of surviving partner. Rela- tion of assets to individual and partnership debts. CHAPTER XXVII. SALE OF PERSONAL PROPERTY. "What title passes private and public sale. Distribution in kind under will and order of court. Growing crops, when personalty and when considered real estate. Compounding and sale of desperate and doubtful claims. Sale of claims not due. CHAPTER XXVIII. EXECUTOR'S SALE OF REAL ESTATE UNDER WILL. Powers of executors in the sale of lands. Administrator with the will annexed and his powers in sale of land under will. He must receive power to act from court as he has no power by will. Effect of death or disqualification of executor or administrator. CHAPTER XXIX. SALE OP REAL ESTATE TO PAY DEBTS. Bale may be coerced. Proceedings, practice, notice, hearing and decree. Jurisdiction of persons and subject matter of suit. Overplus, Homestead & Dower rights. Adjustment and sale of life estate liens and other matters effecting title. TABLE OF CONTENTS. XIU CHAPTER XXX. SETTLEMENT OF EXECUTORS AND ADMINISTRATORS. Distribution. Annual and final settlements. Notice of final settlement must be given heirs or legatees. Closed estate, final order and its effect. Settlement enforced, contempt. Removal of representative. Demand, arrest, commitment, imprisonment of representative. Order for payment and distribution. Suits between representa- tives. CHAPTER XXXI. MORTGAGING AND LEASING REAL ESTATE!. Foreclosure of such mortgage specially provided for by statute. No strict foreclosure. CHAPTER XXXII. ACTIONS WHICH DO AND DO NOT SURVIVE. The legal construction of contracts may determine the right of action. Real estate contracts enforced after death. Implied duties relating to actions by heirs, devisees and legal representatives. CHAPTER XXXIII. APPEALS AND WRITS OF ERROR. To what courts appeals in different cases go. CHAPTER XXXIV. ASSIGNMENT OF DOWER AND HOMESTEAD. Necessary steps in such proceedings. Notice, pleadings, hearing, decree. Appointment and report of commissioners in such matter. Power of court in such proceeding. Waste by person endowed. CHAPTER XXXV. DOWER, JOINTURE, ADVANCEMENTS. Dower right subject to lien and incumbrance. Effect of conveyance by either party on eve of marriage. Jointure bars dower. Pur- chase in name of wife, etc., presumed to be advancement. Pro- vision in will bars dower. Election and renunciation under statute. Divorce, effect of — on dower. Adultery, effect of — on dower. Judg- Xiv TABLE OF CONTENTS. ment, conveyance, laches, crime, etc., when not a bar to dower. Exchange of land, when dower in same. Property acquired after will made. CHAPTER XXXVI. DISPOSAL OF UNCLAIMED MONEY. To be deposited as directed by statute. How obtained after deposit Must apply to court making order of deposit. CHAPTER XXXVII. EVIDENCE AND DEPOSITIONS UNDER STATUTE. Witnesses, competency and credibility of. Events after death of decedent and after death of minor. As to transactions proved by an agent. Conversations during life of deceased adduced by adverse witnesses. Witnesses when not competent against trustee, legal representatives, heirs, legatees and devisees. Interested parties who are. When party competent or incompetent to testify. Admis- sions and declarations. Written instruments, book accounts. Hus- band and wife, when may be witness for and against each other. Adverse party compelled to testify. Production of books and writ- ings. Exemplified and certified records. Records of private and public corporations. CHAPTER XXXVIII. APPRENTICES. Who may bind such. Proceedings for such purpose with or without consent of parents or minor. Indenture of apprenticeship and what it must provide for. Complaints against masters. Removing apprentice out of the state, enticing away, etc., penalty. CHAPTER XXXIX. APPOINTMENT AND QUALIFICATION OF GUARDIANS. Different kinds of guardians. Powers and duties of testamentary guar- dian. Inventories, etc. CHAPTER XL. PUBLIC GUARDIAN. When appointed by the Governor of the State, when appointed by the Court. When such guardian fails to qualify. TABLE OF CONTENTS. XV CHAPTER XLI. DUTIES AND POWERS OF GUARDIANS. Suits by, for or against wards, guardians, next friend. The power to contract how far binding on ward. Management of ward's estate, education of ward. Investments by guardian solely statutory in Illinois. CHAPTER XLII. LEASING, MORTGAGING AND SELLING REAL ESTATE BY GUARDIANS. Foreclosure of such mortgage special, no strict foreclosure. Bill of review in such matter. Requisites of petition, notice, practice sale, return title. Non-resident guardian's powers, sale by such, notice terms, deed, title, etc. CHAPTER XLIII. GUARDIAN'S SETTLEMENT AND ACCOUNTING ON FINAL SETTLEMENT. Powers of probate court and of guardian not strictly confined to statute, common law powers and duties still in force in Illinois. Citation, limitation, liability of sureties, etc. Removal of guardian, pro- ceedings for. Effect of marriage of female ward discharges her guardian. Unclaimed moneys in hands of guardian, to be deposited, etc. CHAPTER XLIV. IDIOTS, LUNATICS, DRUNKARDS AND SPENDTHRIFTS. Proceedings to determine question of sanity. Summons, service, hear- ing, jury, continuance and appointment of conservator. When court of equity will adjudicate as to insanity. Settlements of con- servator, manner of accounting, etc. Performance of contracts of insane, etc. Contracts of insane, when and when not void. Man- agement of estates of insane, etc. CHAPTER XLV. COMMITMENT AND DETENTION OF LUNATICS. Proceedings for supposed insanity. Inquest by jury or commission. Jurisdiction, of persons not charged v/ith crime, docket and record of such kept. Authority to discharge vested in trustees. Adminis- XVi TABLE OF CONTENTS. tration and enforcement of laws governing insane after commit- ment entrusted to State Commissioners of Public Charities. CHAPTER XLVI. INVESTMENT OF MONEY. LEASING, MORTGAGING AND SELLING REAL ESTATE BY CONSERVATOR. Proceedings where conservator sells real estate, petition, notice, prac- tice, etc. Powers conferred upon the court in such case. Non- resident conservator's sale of real estate. Proceedings, practice, etc., in such case. CHAPTER XLVII. RESTORATION OF REASON TO INSANE. Proceedings for such purpose. Trial. Judgment. Settlement of con- servator. CHAPTER XLVIII. COMMON DISASTER. Presumption of death under Roman and common law. Inferences of survivorship may be drawn from the best evidence suggested by every case. When insured and beneficiary die in same disaster. CHAPTER XLIX. FEES OF CLERKS OF PROBATE COURTS IN CLASSIFIED COUNTIES. Act in relation to docket fee held unconstitutional. Fees of clerks of county courts in probate matters. Remission of fees, etc. Record in case of appeal or writ of error, fees and costs in such matter. VOLUME II. CHAPTER L. REVERSIONS AND REMAINDERS. Defined. Distinction between and gift to be paid at a future time, and a direction to pay, or transfer the gift or legacy, at a future time. How created by words and language used. Court determines whether remainder is vested or contingent and whether such take effect immediately or in the future, or not at all. Vested may TABLE OF CONTENTS. XVU be transferred by sale on execution, by deed or will. Contingent remainder may be merged, may be void for remoteness, may fail or be destroyed. How such preserved, how lost. Who may take vested and contingent interests. Prior estate. Deed may con- vey. Future interest were possible construed to vest. Devises of remainders to a class of persons named and not named. Future springing and changing interests. Determinable interestSw Ex- ecutory devises. When property devised for life must be con- verted into money under established rules. Security for preserva- tion of future estate. Life estate coupled with power of sale. — Limiting a fee upon a fee. Cross remainders implied under rules of construction. Power of disposal in first devisee. Restric- tion when prior and subsequent clause of Will are in conflict. CHAPTER LI. COMMON LAW MARRIAGES. General remarks concerning. The Statute of Illinois of 1905, declaring same void. Evidence of such marriage under rules established. Restrictions upon such marriage where all legal elements do not center in such marriage. Held valid in Illinois when legally estab- lished. APPENDIX I. Paragraphs from Wills of Noted and Prominent Persons, namely: William H. Vanderbilt, Marshall Field, George M. Pullman, Cyrus H. McCormick, George Smith, Levi Z. Leiter, John Crerar, Walter L. Newberry, Philip D. Armour, Gustavus F. Swift, Otto Young, George E. P. Dodge, Charles T. Yerkes, Edwin C. Swift, Nathaniel K. Fairbanks, Sarah B. Eaton, Annie W. Durand, and Daniel B. Shipman. APPENDIX II. A Collection of Forms relating to the Matter of Estates and the Ad- ministration and Settlement thereof, including Petitions, Orders and Decrees, and such other Written Instruments as Releases, Dis- charges, Deeds, etc., applicable to the Administration of Estates. TABLE OF CASES CITED [BEFEBENCES ABE TO SECTIONS.] Abney v. Miller, 168. Abbott V. People, 386, 449. Adams v. Adams, 512, 514. Adair v. Bremner, 331. Aden v. Bear, 576, Agnew V. Uchten, 617. V. Fultz, 624. Aken v. Cassiday, 733. Albers Com. Co. v. Sessel, 661, 676. Albretch v. Wolf, 308. Alden v. St. Peter's Parish, 210. Alexander v. Hoffman, 660. V. Masonic Aid Assn., 75. Allen V. Allen, 633. V. McFarland, 93, 862, 864. V. Croft, 195. V. Jackson, 210. V. Shepard, 583. Ailing V. Brazee, 659, 668. Allman v. Ruckma.n, 452. Alna V. Plummer, 796. Alwood V. Ruckman, 452. Amber v. Weishaar, 96. Ames V. Ames, 44, 45. V. Am, T. & S, Bk., 270. American v. Rimpert, 625. American Bd. of F. Miss. v. Nel- son, 68. American Bible Soc'y v. Price, 82, 269, 270, 279. Ammons v. People, 592, 712, 761. Anderson v. Friend, 672, V. Block, 131. V. Anderson, 177, 588, 661. Andrews v. Andrews, 210, 211. V. Irwin, 116, 268, 667. V. Mahoney, 822. Anthony Itter B. Co. v. Ashby, 653. Aortson v. Ridgeway, 707. Appeal of Seibert, 378. Argo V. Coffin, 274. Armstrong v. Cooper, 486, 592. Arnet v. Arnet, 98. Arnt V. Griggs, 380. Arnold V. Alden. 134, 229, 335, 865. V. Keil, 286. V. Crowder, 453. Asay V. Allen, 330, 332. Ashurst V. Given, 305. Atkins V. Merrell, 622, 625, 627, 633. Atkinson v. St. Croix Mfg. Co., 666. Auger V. Tatham, 249. Austin V. Bristol, 229, 862, 865. Ayers v. Chicago Title & T. Co., 375, 377, 378, 379, 862, 864. V. Baumgarten, 740. V. Mussetter, 830, 832. B Badgley v. Votrain, 851. Baggins v. Yates, 141. Bailey v. Briggs, 753. V. Gould, 326. V. Bailey, 241, 243, 724. Baker v. Baker, 80, 82, 258, 266, 270, 274, 328, 653, 667. V. Carpenter, 200, 310. ZlX XX TABLE OF CONTENTS. [BEFEBENCES ABE TO SECTIONS.] Baker v. Scott, 136, 177, 193, 194. V. Brown, 395, 477. V. Hamilton, 726. V. Thompson, 612, Balance v. Samuel, 606. Balder v. Meddeke, 836. Baldwin v. Ball, 530. Bales V. Elder, 57. Banerle v. Long, 215. Bank V. White, 68, 633. V. Beesley, 298. V. Brown, 449. V. EUedge, 668. V. Mansfield, 678. Baptist Ed. Society v. Carter, 608. Barclay v. Piatt, 851. Bardwell v. Brady, 258, 264, 265, 281. 661, 663, 676. V. Bardwell, 141. Barkman v. Barkman, 641. Barkworth v. Young, 297. Barnett v. Wolf, 580. Barnard v. Barnard, 67, 660. Barnes v. People, 336, 337, 339. Barnsback v. Dewey, 706, 754. Barnum v. Reed, 337, 340, 513. Barrel! v. Joy, 297. Barth v. Lines, 636. Bartholomew v. People, 651. Bartlett v. King, 169, 868. Bartmess v. Fuller, 66. Banta v. Boyd, 196, 311. Bassett v. Lockwood, 528. Bates V. Gilbert, 93. V. Machine Co., 607, 665. T. Gillette, 854. Bateman v. Ritter, 112. Bauer Grocer Co. v. McKee Shoe Co., 520. Bay V. Williams, 471. V. Cook, 471. Bayers v. Spencer, 717. Baylor v. Baylor, 97. Beach v. Dyer, 299. Beacroft v. Strawn, 134. Beaird v. Wolf, 601. Beardsley v. Hill, 614. Beattie v. Nafl Bk. of 111., 666. Beaubien v. Cicotte, 277. Becker v. Foster, 651. V. Quigg, 621. V. Becker, 191, 866. Bedford v. Bedford, 617. Beers v. Myers, 713. Beeves v. Stipp, 607. Bell V. People, 424. V. Thompson, 649. | V. Farrer, 659. Bellamy v. Burrows, 297. Belslay v. Engle, 182, 190. Benefield v. Albert, 580, 739. Bennett v. Bennett, 302, 312. V. Hanifen, 587, 598, 750. Benson v. Dempster, 285, 297. , Bentley v. People, 678. Benton v. Broth. R. R. Brakemen, 838. Bergen v. Cahill, 140, 871. Berry v. Powell, 478, 518. Best V. Jenks, 623. Betts V. Jackson, 116. Bevelot v. Lestrade, 84, 131, 264, 269. Beverly v. McGough, 269. Beyers v. Spencer, 865. Bibbens v. Potter, 139. Biggins V. Brackman, 673. V. Biggins, 298, 301. Biglow v. Cady, 309, 321. Billings V. People, 375, 376, 378. V. City of Chicago, 683. Bingle v. Voltz, 165, 173. Binns v. LaForge, 311. Birdsell v. Waggoner, 727. Birmingham v. Kirwan, 244. Bishop v. Davenport, 64, 65, 216. V. Morgan, 173. V. O'Connor, 528. TABLE OF CASES CITED. 2ja [BEFEBENCES ABE TO SECTIONS.] Bixby V. Dunlop, 702. Black V. Miller, 265, 653. Blackburn v. Bell, 712. Blackiaw v. Milne, 75. Blair v. Sennott, 485, 611. V. Vamblaroum, 190, 191. Blake v. People, 597. Blakeslee v. Mansfield, 134. Blanchard v. Blanchard, 235, 655, 661. V. Maynard, 228. V. Williams, 591, 608. Bland v. Bland, 134, 140, 179. Blasdel v. Locke, 339. Bliss V. Seeley, 118, 121, 122. V. Seaman, 439, 440, 586, 587. Blood V. Harvey, 611, 612. Boatman v. Boatman, 196, 852. Bodgson V. Baldwin, 515. Boehm v. Baldwin, 202. Bogert V. Furman, 386. Bonner v. Peterson, 618, 625, 627, 633. Bonnett v. Glattfeldt, 669. Bond V. Lockwood, 586, 724, 749, 750. B. & I. Bldg. Assn. v. Cochrane, 669. Borders v. Murphy, 329. V. People, 461, 512. Boord V. M. Ferst Sons & Co., 666. Booth V. Tabbenor, 661. Bostwick V. Skinner, 43, 390, 395, 706, 749. Bottomly v. Spencer, 643. Botsford V. O'Connor, 67, 580. Bough ton V. Cameron, 727. Bow V. People, 652. Bowen v. Shay, 527, 529. V. Allen, 173, 222. V. Dean, 851. Bowers v. Block, 577. Bowerman v. Sessel, 187. Bowler v. Bowler, 856. Bowling V. Dobyn, 849. Bowles V. Rouse, 387. V. Allen, 726. Bouzer v. Stoughton, 519. Boyd V. Boyd, 663. V. Strahan, 140, 871. i V. Broadwell, 196. V. Yerkes, 668. V. Railway Co., 683. Boyer v. Boyer, 491, 494. V. Sweet, 606. Boynton v. Phelps, 660. Bozza V. Rowe, 584. Brack v. Boyd, 499. Brace v. Black, 82, 676. Bradley v. Rees, 173, 221. V. Gardner, 668. V. Palmer, 279. V. Drone, 580. V. Wallace, 866. Bradford v. Bennett, 392. Bradshaw v. Combs, 649, 659, 662. Bradwell v. Wilson, 483.\^ Branch v. Ervington, 694.\ V. Rankin, 387, 393, 408, 413» 439, 440. Brandon v. Brown, 528, 750. Brannon v. Strauss, 335. Braunfield v. Braunfield, 278. Brecenridge heirs v. Ormsby, 778. Breckenridge v. Ostrom, 518. Bree v. Bree, 580. Breen v. Richardson, 523. Bret V. Yeaton, 307, 324. Brewing Co. v. Ohlerking, 673. Brice V. Hall, 97, 117, 131, 273. Bridge v. Bridge, 851. Brobston v. Cahill, 268. Brooks V. Barrett, 131. V. McKinney, 659. V. Funk, 668. V. People, 713, 717. Brokaw v. Ogle, 852. Brookfield v. Allen, 79S. Bromfield v. Wilson, 179, 180. Bronson v. Hill, 229. XXll TABLE OF CASES CITED. [BEFEBENCES ABE TO SECTIONS.] Bropp V. Fox, 523. Brown v. Morgan, 462. V. Riggins, 86, 272. V. John, 177. V. Pitney, 201, 244, 638. V. Ward, 274. V. Hurd, 659. V. Miner, 776. Brownback v. Kessler, 196. Brownell v. Steers, 525. Bruce v. DoolitUe, 598, 750, 754. Bruler v. Setz, 327. Bruner v. Bruner, 87. V. Battell, 265, 660, 664. Bryan v. Prinn, 707. V. Wash, 717. Buchanan v. McLennon, 201, 266. Bucher v. Bucher, 233. Buckman v. Alwood, 265, 656. Buckingham v. Morris, 335, 869. Bull V. Harris, 471. Bunker v. Green, 451. Burr V. Bloomer, 448, 576. V. Lyon, 253. Burbach v. Burbach, 296, 310, 313, 317. Burger v. Polters, 610. Burgivin v. Babcock, 261. Burnett v. Lester, 867, 868, 871. Burnham v. Burnham, 851. Bursen v. Goodspeed, 630, 703. Burson v. Dow, 634. Burt V. Quisenberry, 82, 278. Burton v. Gagnon, 196. V. Cameron, 730. Bush V. Blanchard, 324. Bute V. Kneale, 643. Butler V. Hubbard, 694. V. Butler, 62, 324, 331. V. Huestis, 134, 190, 603, 854, 874. Butler Paper Co. v. Robbins, 329. Butterbaugh Appeal, 319. Butz V. Schwartz, 657, 663. Byers v. McAuley, 47, 49, 472. V. Thompson, 677. Byrne v. Norcott, 326. Cagney v. O'Brien, 588. Cairnes v. Hunt, 668. Calhoun v. Ross, 682. Calvert v. C!arpenter, 261. Callon V. Jacksonville, 847. Cayne v. Leach, 836. Camp V. Elliott, 392. Campbell v. Campbell, 82, 86, 272, 273, 274, 281, 661, 663. V. Quinn, 127. V. Moore, 617. V. Miller, 685, 742, 826, 827. V. Mason, 872. Cantesey v. Cantesey, 79, 117. Cantwell v. Welch, 684, 685. Capek V. Kropek, 582. Cappo V. Hickman, 710. Carr v. Carr, 265, 653. Carey v. Rawlins, 851. Carper v. Crawl, 862, 864. Carroll v. Bosley, 424. C'armichael v. Reed, 256. Carpenter v. Browning, 133. v. Van Orlander, 134, 177, 195. v. Calvert, 263, 266, 269, 274. V. Mitchell, 610. Carper v. Crowl, 201, 638. Carter v. Grunnels, 276. V. Stookey, 625. v. Tice, 713, 750, 751. Cartwright v. Wise, 637. Caruthers v. McNeil, 166, 243. Carruthers v. Carruthers, 295, 417. Cary v. Stead, 134, 139. Casey v. Canavan, 313, 316. V. Casey, 315. Cash V. Taylor, 666. TABLE OF CASES CITED. XXlll [befebences are to sections.] Cashman v. Will, 182. Cassen v. Kennedy, 93. V. Heustis, 673. Cassell V. Joseph, 580. Casoni v. Jerome, 390. Central Lumber Co. v. Keller, 667. Central Electric Co. v. Sprague El. Co., 667. Chambers v. Jones, 583. V. Howell, 522. Chamberlain v. Williams, 337. Champney v. Blanchard, 338. Chandler v. Morey, 822. Chapin v. Crow, 186. Chapman v. Cheney, 191, 857, 858. V. U. L. I. Co., 453. Chappell V, Knight, 545. Chase v. Cheney, 652. V. Redding, 340. V. Smith, 694. Cheney v. Teese, 147, 182, 197, 873. V. H. F. & F. Miss. Society, 117. V. Roodhouse, 534, 750, 754. Chestnut v. Chestnut, 639. Chicago Elec. L. & R. Co. v. Hut- chinson, 666. Title & T. Co. V. Brown, 39, 117, 127, 128. Terminal T. Co. v. Wins- low, 283, 305, 306, 317. Union Nat'l Bk. v. Goetz, 300. Fire Place Co. v. Tait, 321, Mut. Ins. Assn. v. Hunt, 327. & E. I. R. R. Co. V. O'Con- nor, 451, 607. R. I. & P. R. R. Co. V. Welch, 660. City Railway Co. v. Tuohy, 665. B. & Q. R. R. Co. V. Dunn, 672. Stove Works v. Lalley, 695. Chicago, R. I. & P. R. R. Co. r. Munger, 776. Chisolm V. Beaman Mfg. Co., 668. V. Ben, 116. Christy v. Marmon, 58, 502, 506. Christiansen v. D. T. & W. Co., 651, 661, 676. V. Graver Tank Co., 679. City of Alton v. County of Madi- son, 766, 796. City of Peoria v. Darst, 179, SSI- City of Aurora v. Scott, 651. City of Chicago v. Nodeck, 657. City of Chicago v. Vesey, 667. City of Chicago v. English, 68?, 683. Clark V. Thompson, 580, 583. V. Carr, 530. V. Shanon, 196. V. Clark, 635. V. Canfield, 253, V. People, 073. V. Pierce, 327, V. American Surety Co., 438L V. Middleton, 871. V. Burnside, 453, 629, 728, 730, V. Mogle, 467. V, Lotts, 641. Clapp V. Emery, SOO, Clausennius v. Clausennius, 54, 89, 114, 131, 258, 278. Clay V. Hart, 429. V. Freeman, 515. V. Hammond, 778. Clewes V. Fox, 43, Cleland v. Fish, 707. Clifford V. Davis, 182. Cline V. Jones, 64, 66, 87, 865. Clinefelter v. Clinefelter, 399. V. Ayers, 545. Cloggins Appeal, 850. Clough V, Clough, 337. XXIV TABLE OF CASES CITED, [BEFEBENCES ABE TO SECTIONS.] Clyboum v. Pitts, Ft. W. R. R. Co.. 633. Coat V. Coat, 487. Cobb V. Charter, 323. Ctockerman v. Cockerman, 277, Cochran v. Cochran, 168. V. Adams, 327. Coffey V. Coffey, 512, 513, 514, Cole V. Haws, 142. Coles V. Terrill, 639. Coleton V. Field, 486. Collins V. Ayers, 623. V. Kinnare, 588, 612. V. Wood, 638. Columbia Mfg. Co. v. Hastings, •657. Combs V. Bradshaw, 659. Comer v. Comer, 64. Oommercial Nat'l Bk. v. Lincoln F. Co., 666. V. Proctor, 515. Compher v. Browning, 86, 272, 273, 278. Compton V. McCaffrey, 469, 585. Commonwealth v. Gilson, 429. V. Toms, 401. Condon v. Churchman, 765. Conklin v. City of Springfield, 863. V. Foster, 630. Connor v. Akin. 512. Connelly v. Dunn, 672. Conover v. Musgrave, 740. Consolidated Coal Co. ▼. Gruber, 726. . Constable v. Bull, 138. Conservatorship of Hall, 775, 781. Cook Co. V. Fairbanks, 842. Cook V. Wood, 468, 484. V. Gilmore, 328, 335. Cool V. Jackson, 623. V. Jackman, 627. Cooper V. Cooper, 191, 197, 243, 859. V. McClun, 296. Coppin V. Fernybough, 168. C'orderey v. Hughes, 675. Cornell v. Crosby, 376, 378, 379. Corrington v. Corrington, 487. Corwin v. Shoup, 741. County of Cook v. Ind. School for Girls, 616. Cowdry v. Hichcock, 133, 149, 245, 638, 639. Cowman v. Rogers, 836, 838. Cox V. Garst, 627, 634. Craig V. Southard, 80, 82, 266, 270, 271, 272, 274. Grain v. Kennedy, 602. Crane v. Crane, 660. Crawford v. Burke, 164. V. Cemetery Assn., 312. V. Thompson, 779. Creel v. Kirkham, 452. Crerar v. Sawyer, 108. Critz V. Pierce, 117. Crose V. Rutledge, 672. Cross V. Carey, 386. V. People, 268. Crossett v. Owens, 686. Grossman v. Wohllenben, 662. Cromine v. Tharp, 712. Cronin v. Royal League, 653. Crone v. Crone, 298. Croucher v. Croucher, 298. V. Dillon, 295. Crowley v. Crowley, 79, 131. Crum V. Sawyer, 108, 216. Grumpier v. Governor, 401. Crumley v. Warden, 75, 667. Cruse V. Cruse, 485, 496. Cuming v. Hill, 694. Cunningham v. Dougherty, 89. V. Railroad Co., 727, 751. Curtis V. Rippon, 142. V. Brown, 316, 822. V. Brooks, 589, 613. Currie v. Syndicate, 666. TABLE OF CASES CITED, XXV Curry v. People, 529, 530, 598. Cutler V. Cutler, 578, 581, 582. outright V. Stanford, 601. D Dady v. Condit, 657. Daggart v. White, 295. Dailey v. Dailey, 274. V. Wilkie, 239, 243, 295. Dalndridge v, Washington, 484. V. County of Kanka- 781, 796. Daniher. 634, 635. Taylor, 339. McDonald, 475, 477, Dandurand kee, Daniher v Darland v. Darling v. 483. Darrah v. Boyce, 327. Darst V. Gale, 665. Daub V. Englebach, 471. Dauel V. Arnold, 578, 579, 638. David V. Ellis, 668. Davidson v. Riddin, 255. Davis v. People, 662. v. Upson, 113, 255. V. Stergeon, 134. v. Hudson, 706. V. Ripley, 177. V. Stromberg, 289, 333. V. Hamlin, 707. V. Strambaugh, 301. V. Harkness, 314, 703, 750. V. James, 603, 733. V. Jones, 611. Davenport v. Farrar, 633. V. Kirkland, 310. v. Reynolds, 443, 550. Daxanbeklar v. People, 651. Day V. Everett, 694. Dean v. Walker, 471. V. Bittinger, 253. V. Long, 304, 660. [BEFEBENCES ABE TO SECTIONS.] Dearlove v. Otis, 250. Dearth v. Bute, 612. Dee V. Dee, 196. Decker v. Decker, 165, 173, 243, 248, 642, 645. V. Patton, 387, 445. Deford v. Deford, 853. Deiterman v. Ruppel, 485. Deland v. Metzer, 736. Deltzer v. Schuester, 638. Demilly v. Grosresand, 43. Denegre v. Walker, 316. Dennis v. McCagg, 315, 332. Dennison's Appeal, 277. Deniston v. Hoagland, 672. De Pay v. Wurtz, 374. Despain v. Wagner, 285. Dettszer v. Schuester, 498. Deuterman v. Ruppel, 657, 683. Deval v. Dye, 337, 339. Devine v. Devine, 298. Dews V. Osborne, 651. Dick V. Dick, 298. Dickey v. Parker, 79. V. Malechi, 267. V. Carter, 271. Dieken v. McKinley, 297. Dickison v. Dickison, 726. Dickson v. Hitt, 588. V. N. Y. Bis. Co., 215. Dickinson v. Dickinson, 166, 618. 711, V. Griggsville Nat'l Bk., 869. Dillman v. McDaniels, 270. Dingman v. Beale, 291, 295. Dinsmore v. Bressler, 449, 512. Dinwiddle v. Self, 191. Ditch V. Sennott, 201, 245, 638. Diversey v. Smith, 260, 608. V. Johnson, 327, 520, 579. 580, 591. Dixon V. Buell, 386, 750. V. Nichols, 534. Dobbins v. First Nat'l Bk., 717. XXVI TABLE OF CASES CITED. [BEFEBENCES ABE Dodge V. Nat'l Ex. Bk., 666. V. Mack, 486. V. Cole, 602, 770, 771, 790, 820, 822. Dodgson V. Henderson, 659, 660, 662. Dodson V. Sears, 668. Doe V. Considine, 849. Doggert V. Dill, 44, 490, 523. Donoghue v. Chicago, 625. Donlevy v. Montgomery, 265. Donlin v. Bradley, 298. Doolittle V. Bruce, 750. Dooley v. Crist, 453. Doran v. Mullen, 130, 267. Dorman v. Dorman, 298, 386. Doty V. Doty, 651. Doubleday v. Kress, 666. Douglas V. Fullerton, 651. Douthart v. Logan, 515, 524. Dows V. Swan, 170. Downing v. Plate, 667. Drake v. Kinsell, 401. Draper v. Draper, 651. Drew V. Haggerty, 336. Drury v. Connelly, 96. Ducat V. City of Chicago, 379. Ducker v. Burnham, 93, 310, 849, 864. Duffin V. Abbott, 43, 390, 395, 439, 440, 549, 586, 602, 770. Duggart V. White, 295. Durham v. Mulkey, 621. Duncan v. Duncan, 162. V. Charles, 101. Dunham v. Dunham, 641. Dunlap V. Lamb, 607. V. McGee, 486, 592. Dunnigan v. Stevens, 479. Duryea v. Duryea, 68, 108, 134, 227. Durror v. Matteaux, 210. Durant v. Rogers, 332. Dosing V. Nelson, 598. Dutton V. Board of Review, 379. TO SECTIONS.] Duval V. Duval, 44, 45. Dwight V. Newell, 541, 602. Dwyer V. O'Connor, 298. Dye V. Noel, 611. Dyer v. Hopkins, 660, 678. E Eads V. Thompson, 673. V. Mason, 490, 523. Eagan v. Clark, 588, 601. V. Connolly, 679. Easterly Harvester Co. v. Hill, 657. Eaton V. Watts, 142. V. Straw, 851. Ebey v. Adams, 317, 854. Ebert v. Cording, 660. Eddy v. People, 770. Egbers v. Egbers, 279. Elder v. Bales, 57. Eldred v. Meek, 850. Eldridge v. Palmer, 779. V. Eldridge, 855. Ellicott v. Lewis, 386. Ellis v. Ellis, 141. Ellithorpe v. Buck, 261. Ely V. Dix, 545. Emerick v. Hileman, 487, 587, 65L Emerson v. Marks, 90. Emmerson v. Durand, 332. Emmert v. Hayes, 54, 88, 133, 173. Emmons v. Moore, 707. English v. Porter, 86. v. Cooper, 310. v. Landon, 663. Ennis v. Ennis, 615, 765. Entwistle v. Meikle, 80, 258, 266, 275. Estate of Corrington, 44, 200, 296, 598. Kohley, 131. Biddle, 862, 865. TABLE OF CASES CITED. XXVll [BEFEBENCES ABE Estate of Carstensen, 850, 855. Delaney, 855. Johnson, 850. Cashman, 93, 243, 871. Steele, 265, 466, 487, 653, 740, 749. 750, 754, 757, 764. Page, 266, 267, 268. Scoville, 491, 494, 500. Bonse, 268, 659. Chafee, 274. Smith, 274, 709. Story, 283. Whitman, 295. Hoffman, 378. Stewart, 378. Dow, 378. Sloan, 378. Swift, 379. Speed, 379. Bailie, 379. Shell, 277. Dietz, 99. Grossman, 98. Wagner, 386. Dock, 389. Wincox, 391. Wilson, 415. Porter, 489. Phillip Kraher, 512, 514. Scofield, 595. Ramsey, 598. Witton, 611. Margaret Handlin, 651. Walker, 652. Selwyn, 836. Earl, 836, 837. Cope, 842. Rapp V. Phoenix Ins. Co., 607. Etheridge v. Corprew, 127a. Etling V. Bank, 44, 45, 401, 434, 467, 468, 470, 487, 579, 583, 584. Evans v. People, 682. V. Price, 149, 150, 638, 640. TO SECTIONS.] Ewart V. Village of Western Springs, 685. Ewing V. Bailey, 652. Exter V. Odiorne, 305. Ex Parte Guernsey, 629. Ex Parte Burkhart, 706. F Fairbanks v. Crane, 851. Fairman v. Beal, 851. Faloon v. Sinshauen, 865. Fairwans Appeal, 489. Farrand v. Long, 633. Fash V. Blake, 268. Flatjo V. Blister, 842. Fell V. Young, 603. Felsenthal v. Kline, 300. Female Academy v. Sullivan, 862. Ferbache v. Ferbache, 660. Fidal V. Girard, 212. Figge V. Rowlen, 679, 681. Field V. Oppenstein, 280. V. People, 196, 739, 740. V. Herrick, 724, 727, 730. Filmore v. Weeks, 725, 580. Finley v. King, 851. Firemans Ins. Co. v. Peck, 662, 663. First Nat'I Bk. v. Gage, 449, 526. Fish V. Glover, 471. Fisher v. Fishbank, 134, 200, 318. V. Fisher, 660. Fishback v. Joesting, 134, 862. Fishbeck v. Gross, 298. Fisk V. Seeberger, 315, 330. Fitzgerald v. Turner, 565, 575. V. Glancy, 386, 395. 579. Fitzgibbon v. Lake, 737, 740, 820. Fitzsimmons v. Cass, 485. Fitzpatrick v. Joliet, 615. Flagg V. Stone, 515. Flannigan v. Howard, 68. XXVlll TABLE OF CASES CITED. [BEFEBENCES ABE Fletcher v. Shepherd, 6G1. V. Ashburner, 215, 310. Fleming v. Mills, 661, 663. V. Vennum, 625. Fleischman v. Walker, 616. Flint V. McClung, 659. Flynn v. Gardner, 672. V. Davis, 851. Ford V. McVay, 694, 695. V. First Nat'l Bk., 468, 483, 484, 485. 488, 587, 512. Fogarty v. Ream, 750. Foskett V. Wolf, 488, 587. Foster v. Adler, 406. V. Hart, 670. V. Hale, 297. Fox V. Fox, 141. Frail v. Carstairs, 70, 866. Frame v. Frame, 590. Francis v. Wilkerson, 278. Francisco v. Hendricks, 630. Frank v. Moses, 615. Frankenstein v. North, 298. Frans v. People, 615. Frazer v. Supervisors, 190, 191, 192, 854. Frederick v. Emig, 582, 633. Freer v. Lake, 101. Freeman v. Freeman, 672. V. Easly, 54, 82, 86, 89, 263, 272, 279. V. Hartman, 635. French v. Northern Trust Co., 292. V. Woodruff, 42. Frendenstein v. McNeir, 598. Friedman v. Steiner, 140, 179, 181, 857, 866, 871. Fredrick v. Fredrick, 217, 299. Frink v. People, 660. Frothingham v. Petty, 401, 415, 424, 434. Frothman v. Deters, €10. Fruitt V. Anderson, 776. TO SECTIONS.] Fry V. Bidwell, 739. V. Morrison, 162, 201, 637. Frynear v. Lawrence, 445. Fuller V. Field, 678. V. Linzee, 836, 838. Funk V. Eggleston, 174, 182, 673, 851. Furlong v. Riley, 495, 497, 499. Fussey v. White, 206. G Gage Hotel Co. v. Bank, 666. Gage V. Eddy, 651, 662, S63. V. Smith, 127. V. Gage, 851. V. Caraher, 380. V. Consumers El. L. Co., 381, 382. Galagher v. Kilkeary, 96. Galbraith v. McLain, 64, 216, 637, 660, 672. Gale V. Gale, 201. V. Kinzie, 633. Galena C. & U. R. R. v. Welch, 649. Gammon v. Gammon, 215, 295. Gannon v. Peterson, 134. 177, 191-. 866. Gardt v. Brown, 101. Gardner v. Ladue, 119. v. Maroney, 770. Garrison v. Little, 212. Garvin v. Curtin, 295, 316. Garvey v. Coughlin, 451. v. Newton, 216. Gauch V. St. Louis Mut. L. Ins Co., 74, 638. Gaunt V. Tucker, 340. Geisen v. Heiderick, 285. Gehrke v. Gehrke, 617. Gibbons v. Hoag, 321. Gibson v. Gibson, 576. Gifford v. Wilkins, 661. TABLE OP CASES CITED. XXIX [BEFEBENCES ABE TO SECTION'S.] Gilbert v. Guptill, 417, 711, 717, 750, 754. Giles V. Anslow, 140, 141, 191. V. Smith, 292. Gilespie v. Gilespie, 673. V. Smith, 292. Gill V. Manufacturing Co., 196. V. G. T. M. Co., 310. Gillette v. Wiley, 705, 712, 713, 750, 751, 754. Gilman v. Stone, 212. V. Hamilton, 213. Glass V. Scott, 102. Gloss V. Kingman, 381. V. Cessna, 381, 382, V. Hickow, 381. V. Hoban, 382. V. Halberg, 381. V. Hallowell, 382. V. Talcott, 382. Glover v. Condell, 134, 306, 872. V. Cayton, 330. Goodale v. Lawrence, 796. Goodall V. Hibbard, 851. Goodman v. Kotrel, 44, 45. V. Koppert, 386. Goodland v. Burnett, 168. Goodbar v. Lldikey, 271. Godschalk v. Fullmer, 285, 297. Goels V. Goels, 637, 662. Goeppner v. Leitzelman. 449, 461, 469. Goff V. Pensonhafer, 198, 851. V. O'Connor, 453. V. Insurance Co., 661. Gogan V. Burdick, 624. Golder v. Bressler, 680. Gold V. Bailey, 448, 468, 469, 484, 526. V. Judson, 168. Gondy v. Hall, 820. Gordon v. Dickinson, 641. V. Gilfoil, 47. V. Dodge, 201. Qormley v. Bunyan, 679. Gorton v. Frizzell, 597. Governor v. Barr, 401. V. Matlock, 401. Gove V. Gather, 625. Gould V. Theological Seminary, 79. 82, 117, 138. Grafifenreid v. Kundert, 390, 530, 598, 600, 601. Graham v. U. S. S. Inst, 666. V. People, 481. V. Dodge, 245. Grand Pass Shooting Club v. Cros- by, 679. Grand Tower Manf g Co. v. Hall, 733. Granjang v. Merkle, 475. Grattan v. Grattan, 64, 127. Gray v. Gillilan, 751. V. Newton, 66. Graybeal v. Gardner, 263, 266. Green v. Birch, 638. V. Hitchcock, 117. y. Taney, 614. V. Green, 86, 272, 279. V. Hewett, 184. Greenbaum v. Austrian, 633, 634. V. Greenbaum, 737. Greenwood v. Greenwood, 310. Greer v. Walker, 542. Gregory v. Loose, 666. Grier v. Cable, 611, 612, 616. Griffin v. Griffin, 182, 333, 662. V. Bogert, 819. Grimmer v. Friederick, 196, 849, 850, 855, 862, 864. Groembel v. Arnett, 523. Grover v. Grover, 339. Griswold v. Smith, 588. v. Greer, 851. v. Hicks, 851. Gritten v. Dickerson, 633. Gruhn v. Richardson, 300, 301. Guild v. Hall, 84, 269, 274. Guilfoil v. Arthur, 296. XXX TABLE OF CASES CITED. [eefebences are to sections.] GuUett V. Farley, 496, 638, 640. Gum V. Richardson, 280, 333. Gunnell v. Cocker, 717. H Hadley v. Hopkins, 212. Hagan v. Varney, 300, Hagerman v. Hagerman, 193, 340. Haines v. Hewett, 622. Hale V. Hale, 207, 210, 215, 251, 295, 309, 317. Halfield v. Fowler, 134. Hall V. Irwin, 333, 390, 441, 527, 546. V. Warren, 154. V. Moxey, 479. V. Harris, 623. Halloran v. Fitzgerald, 300. Hambrook v. Simmons, 341. Hamlin v. U. S. Express Co., 133, 140, 179, 864, 871, 874. Hamilton v. Hamilton, 641. V. Wells, 530. V. Latakee, 819. V. People, 840. Hanchett v. Rice, 606. Hancock v. Am. L. Ins. Co., 253. Hanifan v. Needles, 390, 433, 440, 596, 602, 760. Haniford Oil Co. v. First Nat'l Bank, 665. Handberry v. Doolittle, 145, 855. Hanna v. Reed, 778. V. Palmer, 582. Harding v. Le Moyne, 577, 579. 580, 581. V. Shephard, 45, 478. V. Osborne, 318. Harrer v. Wallner, 704. Harris v. Mclntyre, 298. V. Connell, 318. V. Millard, 488, 587. Harrison v. Wetherby, 118, 121, 122. V. Rowan, 272. Harriman v. Sampson, 661. Harrington v. Stees, 96, 97. Harmony v. Bingham, 323. Harp V. Parr, 95, 263, 271. Hart V. Seymour, 320. V. Brown, 329. V. Burch, 585. Hartz V. Seinsheimer, 852. Harshbarger v. Carroll, 856, 865. Hartford Life Ins. Co. v. Sher- man, 665. Hartman v. Schultz, 582, 630, 852. Hartwell v. McDonald, 630. V. DeVault, 644. Harvey v. Harvey, 750, 751. V. Sweet, 740. V. Cook County, 382. Harvard College v. Balch, 196, 849, 864. Hapgood V. Cornwell, 523. Haskins v. Martie, 595. Hatch v. Atkinson, 336. Hause V. Van Ingen, 332. Mauser v. Moore, 851. Hawhe V. C. & W. I. Ry. Co., 106. Hawkins v. Bohling, 862. v. Wills, 141, 142. Hawver v. Hawver, 672, 674. Hayac v. Will, 578, 581, 582. Hayes v. Hayes, 374. v. Mass Mut. L. Ins. Co., 724. 729. v. Thomas, 51. V. Parmlee, 674. V. Borders, 702. Haynes v. Mcllwain, 300. V. People, 597, 615. V. Clearlock, 790, 791. Haynie v. Dickens, 638. Hazeltine v. Fourney, 300. Hazelrigg v. Pursley, 727, 751, 765. Heacock v. Hosmer, 261. TABLE OF CASES CITED. xxxl [KEFEBENCES ABE TO SECTIONS.] Headley v. Kirby, 336, 340. Healy v. Eastlake, 8G6, 874. Heath v. Hewitt, 851. Heckenkemper v. Dingwehrs, 597. Heirs of Langworthy, 393. Heirs of Critz v. Pierce, 131. Heinrichson v. Heinrichson, 866. Heintz v. Algren, 254. V. Dennis, 307. Heiser v. Sutton, 636. Henchel v. Hamers, 298. Henderson v. Virden Coal Co., 309. V. Blackburn, 179, 182, 183, 333, 871. V. Coover, 401. V. Treadway, 664. Hendrickson v. Van Winkle, 712. V. Mudd, 261. Henry v. Caruthers, 466. V. Eddy, 449. V. Tiffany, 670. County V. Drainage Co., 321. Henson v. Moore, 72, 88, 582. Hesse v. Simpson, 850. Hersey v. Purington, 850. Herman v. Vogt, 86, 273. Herrington v. Lawman, 386. Heslet V. Heslet, 530, 638. Heslop V. Grattan, 230. Hesterbrook v. Clark, 94, 396. Hetfield v. Fowler, 870. Hill V. Hill, 851. Hough V. Rawson, 863. Houstes V. Johnson, €02. Heuschkel v. Heuschkel, 617. Howard v. Slagle, 587, 613. V. Peavey, 854. Howe V. Hodge, 858. Hickox V. Frank, 387, 445. Higgins V. Dwen, 202. V. Lansingh, 310. V. Curtis, 329. V. Spring, 601. V. Higgins, 617. Highland v. Highland, 87. Hildebrandt v. Ames, 836, 838. Hill V, Bahrns, 80, 271, 279. V. Grannelli, 39, 206. Hinds V. Hinds, 295. Hinkley v. Reed, 665. Hitt V. Scammon, 260, 627. Hoagland v. Great W. Tel. Co., 678. V. Crum, 448. Hoare v. Harris, 726. Hobson V. Ewan, 43, 390, 395, 408. V. Payne, 579, 615. Hobble V. Ogden, 318. Hoeffer v. Clogan, 210, 211, 212. Hoffman v. Chicago Title & T. Co., 665. Holbrook v. Forsythe, 75, 224. Holden v. Herkimer, 615. V. Cook County, 212. V. Piper, 390. Holderman v. Gray, 660, Holton V. Dunker, 665. V. Daily, 451. Hollaway v. Galloway, 131, 266. Holerman v. Blue, 729. Holister v. Corder, 836. HoUiday v. Dixon, 164. V. Gamble, 702. Holmes v. Field, 710, 728. V. Shaver, 528. V. Burwell, 601. Holson V. Fullerton, 709. Hopkins v. McCann, 543, 576, 588. V. Medley, 127. Hooper v. McCaffery, 492, 510. Hoover v. Hoover, 865. Homer v. Zimmerman, 712. V. Spellman, 682. V. Goe, 615. Horvitt V. Estelle, 279. Hotchkiss V. Brooks, 630. Hough v. Harvey, 595. House V. House, 142. V. People, 43. XXXI 1 TABLE OF CASES CITED, [references are Hovey v. Thompson, 668. Howe V. Hutchinson. 280. V. Hodge, 320. V. People, 598". Howard v. P"'lannigan, 105. V. Slagel, 518. Hoy V. Martin, 142. Hoydt V. Shepherd, 330, 335. Hubbard v. Hubbard, 109, 162. Hudson V. Hudson, 216. Huey V. Huey, 717. Huesser v. Harris, 211, 212, 213, 214. Huffman v. People, 390. Huggins V. Drury, 266, 274. Hughes V. Washington, 215. V. People, 729, 730, 514. Hull V. Eddy, 851. Hulock V. Ferville, 865. Hundall v. Ham, 57, 68, 103, 108, 637. Hunt V. McCartney, 196. V. Fowler, 212. Kurd V. Goodrich, 330, 332, 382. Hurlbut V. Meeker, 659. Hutchinson v. Hutchinson, 665. V. McLaughlin, 727. Hyman v. Harding, 286. Hyslop V. Finch, 611. lago V. lago, 771. Ide V. Ide, 851. Illinois Cent. Ry. Co. v. Lattimer, 726. V. Messnard, 674. V. Cragin, 495. V. Weldon, 649, 651. V. Reardon, 664. V. Taylor, 672. Christian Miss. Con. v. Hall, 337. TO SECTIONS.] Illinois Life Ass'n v. Wells, 663. Land & L. Co. v. Bonner, 199, 215, 850. V. Speyer, 259. Independent Order v. Stall, 276. Inglis V. Trustees Sailors Harbor, 213. Ingraham v. Ingraham, 134, 208, 210, 211, 212, 256, 466, 471. Insurance Co. v. Gorisch, 415. V. Woodworth, 415. V. Hardesty, 451. V. Johnson, 657. Irwin V. Walpert, 241, 243. Iroquois Furnace Co. v. Hardware Co., 665. Isle V. Cranby, 770, 771, 776, 792. Jackson v. Leek, 717. V. Minor, 707. V. Wilcox, 707. V. Bank, 666. V. Phillips, 210. V. Horton, 300. V. Phipps, 617. V. Rowland, 617. V. Spink, 819. Jackson Paper Co. v. Com. Nat'l Bank, 666. Jacquin v. Davidson, 265. Jele V. Lemberger, 127, 255, 259. Jenkins v, Drane, 67. Jennings v. Graves, 694. V. Jennings, 199. V. Smith, 310, 638, V. Neville, 513. V. Dumphy, 585. Jernberg v. Mix, 657. Jessup V. Jessup, 598, 751. / John v. Redmond, 666. Johns v. Johns, 316. TABLE OF CASES CITED. XXXIU [references are to sections.] Johnson v. Gillette, 611. V. Mellhorsen, 43. V. Askey, 134, 196, 874. V Johnson, 140, 179, 182, 236, 243, 253, 258, 263, 266, 279. V. Bank, 164. V. Davidson, 418. V. Van Epp, 450. V. Von Kettler, 512, 597. V. Berlizheimer, 515. V. Maples, 598. V. Beasley, 706. V. Merrithew, 836, 837. V. Buck, 139, 200, 310, 469, 585. Jones V. Gilbert, 630. V. Jones, 295, 276. V. Habbersham, 213. V. Lloyd, 315. V, ColbecK, 874. Judy V. Kelly, 445, 470. Jolly V. Graham, 469, 726, 276. K Kaenders v. Montague, 277. Kaufman v. Peacock, 633. V. Breckinridge, 226, 302, 871. Kann Moll v. Gardner, 297, 305, 317. Karr v. Karr, 424. Keating v. Cornell Bros., 657. Kebaum v. Cordell, 673. Keegan v. Geraghty, 68, 640. Keefer v. Mason, 445. Keithly v. Parker, 79. Keith V. Miller, 101, 297. Keister v. Keister, 117. Kelly V. Parker, 79. V. Vigas, 75, 134, 249, 251. V. Gonce, 93. V. Austin, 453. Kellett V. Shepard, 849, 864. Kellogg V. Hale, 178, 305. V. Wilson, 583. V. Peddicord, 297. Kelsey v. Snyder, 660. Kenley v. Bryan, 577, 581, 630. Kennedy v. Kennedy, 166. V. Knoble, 215. V. Northup, 778. Keniston v. Scoeva, 337. Kent V. Mason, 659. Koster v. Clark, 703. Killgour V. Gockley, 580. Killbe V. Myrick, 778. Kimball v. Cuddy, 777. V. Cook, 649. V. Lincoln, 522. Kindig v. Deardorff, 134. King V. Worthington, 659. V. Goodwin, 499. V. King, 311, 317. V. Talbot, 331. Kingman v. Higgins, 630, 653. V. Harmon, 196, 736, 850. Kingsbury v. Burnside, 67, 297. V. Buckner, 67, 726. V. Sperry, 615, 724, 733, 734, 736, 765. V. Powers, 734, 736. Kinne v. Schumacher, 592. Kinnebrew v. Kinnebrew, 851. Kinney v. Keplinger, 390, 514, 547. V. Knoebel, 819. Kirby v. Watt, 668. Kirkham v. Boston, 610. Kirkland v. Cox, ITS, 220, 303, 305, 317, 318. V. Conway, 224. Kirkpatrick v. Kirkpatrick, 185, 196, 249, 862, 864. V. Haley, 477. V. Clark, 285, 276. Kittridge v. Nicholes, 581. Klicka V. Klicka, 600. Klokke V. Dodge, 41, 42, 43. xxxiv TABLE OF CASES CITED. [BEFEBENCES ABE TO SECTIONS.] Knapp V. Knapp, 116. Knickerbocker v. People, 42. Knight V. Pottgieser, 196, 849, 862, 864. Knowles v. Goodrich, 321. Knowlton v. Knowlton, 641. Koeffler v. Koeffler, 857, 866. Kohtz V. Eldred, 862, 865. Kochersperger v. Drake, 75, 260, 372, 373, 606. Krebaum v. Cordell, 300. Kroell V. Kroell, 502, 509, 607, 636. Kron V. Kron, 872. Kruse v. StefEens, 329. Kruger v. Kruger, 580. Kunnen v. Zurline, 100. Kunz V. Hibner, 178, 223. Kurtz V. Graybill, 215. Kusch V. Kusch, 582. Kyner v. Ball, 191. Landt v. McCullough, 667. Lancaster v. Lancaster, 134. Lane v. Thorn, 494, 612. Langley v. Dodsworth, 660. Langworthy v. Golden, 243. V. Baker, 408, 615. Lantry v. Lantry, 301. La Fayette Bank v. Stone, 679. Lamar v. Micou, 705, 729. Lambe v. Drayton, 196. Lambert v. Harvey, 219. Lamkin v, Burnett, 651. Larson v. Wolf, 624. V. Ditts, 285. Larman v. Knight, 289, 299, 301, 333. Lattimer v. Lattimer, 865. Laughlin v. Covel, 381. Lavalle v. Strobel, 606. Lawrence v. Balch, 56, 638, 640. V. Smith, 309, 858. V. Lawrence, 311, 317, 661. Lawrie v. Radmitzer, 94, 106. Lawson v. Copeland, 326. Lawwill V. Lawwill, 75. Leamon v. McCubbin, 386, 416. Leavitt v. Leavitt, 661. Ledford v. Weber, 673. Lee V. People, 615, 616. Leiter v. Sheppard, 141. Le Fray v. Flood, 142. Lehman v. Rothbarth,' 314, 323, 327, 335, 728, 750, 751, 753, 754. Lehndorf v. Cope, 140, 144, 177, 191. Lehnard v. Specht, 196, 324, 333. Leman v. Sherman, 295. Lenfers v. Henke, 617, 033. Lesher v. Worth, 492, 510. Lessley v. Lessley, 492, 640. Lewis V. King, 61, 633. V. Bambart, 121, 122. V. Pleasants, 191. V. Lyons, 386, 586. V. Moffett, 525. V. McGraw, 630. Liddicoat v. Trigtown, 386. Lieserow^itz v. Railroad Co., 726. Life Ass'n of Am. v. Fasset, 609. Ligger v. Mut. U. L. Ass'n, 329. Lilly V. Waggoner, 272, 777. . Linebaugh v. Atwater, 726. Lincoln Ave. G. R. Co. v. Dadans, 672. Lingren v. Railway Co., 673. Lepa V. Fox, 494. Litch V. Clinch, 665. Little V. Williams, 462, 495. Lloyd V. Malone, 621, 622, 737, 740. V. Knights of Pythias, 684. V. Kirkwood, 726. TABLE OF CASES CITED. XXXV [BEFEBENCES Any. TO SECTIONS.l Lockwood V. Mills, 329, 584. V. MofEett, 56. V. Foster, 707. Loeb V. Stern, 265. V. Stern, 654. Loewenthal v. McCormick, 668. Logan V. Taylor, 598. Lombard v. Kenzie, 633. V. Whitbeck, 171, 191, 857, 866, 873. Lomax V. Shinn, 177. Lovass V. Olson, 850. Louisville T. Co. v. Cincinnati, 47. Lunt V. Lunt, 205. Luther v. Luther, 113, 127, 255. Lynch v. City of Litchfield, 683. V. Hutchinson, 38. V. Lynch, 523. V. Rotan, 386. V. Hickey, 488, 492, 498. Lyman v. Conkey, 401. Lyne v. Sanford, 706. Lynn v. Lynn, 616, 733. V. Sentel, 641. M Mack V. Woodruff, 478, 486, 592. Mackay v. Pulford, 487. Macnab v. Whitehead, 141. Madden v. Cooper, 579. Maddison v. Larmon, 849, 853, 854, 873. Maghar v. O'Harra, 602. Magoun v. 111. T. & S. Bank, 375. Magnuson v. Magnuson, 197. Maher v. Aldrich, 307, 308. V. Trust Co., 265, 656, 661. Mahoney v. Mahoney, 660. V. People, 512, 514. Makepeace v. Moore, 526, 541. Markham v. Hufford, 851. Maloney v. Scanlon, 478. Mannardt v. 111. Staatz Zeitung, 313, 321. Manna v. Yocum, 464. Markillie v. Ragland, 140, 182, 871. Martin v. Stubbings, 838. V. Judd, 127. V. Martin, 336, 337, 338, 341. 343, 512, 514, 613. Marsh v. People, 439, 443, 549, 550, 586, 602. V. Reed, 316. V. Prentiss, 337. V. Hoyt, 850, 855. Marshall v. Rose, 494, 576. V. Coleman, 66, 290, 469, 587, 589, 595, 668. V. Adams, 467. V. Karl, 265. V. Peck, 673. Marston v. Wilcox, 431. Marsey v. Huntington, 87. Marvin v. Collins, 72. V. Ledwith. 638, 849. Masonic Orphans Home v. Gracy, 82, 131. Massie v. Belford, 428. Mason v. Wait, 728, 737. V, Tiffany, 490. V. Johnson, 614. Matson v. Griffin, 453. Mather v. Mather, 134, 14G, 182. Matter of Eddy, 389. Matter of Curtis, 390. Matthews v. Am. Cent. Ins. Co., 389. V. Hoff, 580, 583. v. Granger, 663. Matthewson v. Cheek, 865. V. Davis, 332. & H. Z. Co. V. City of La Salle, 864. Mattoon Gas, L. & C Co. v. Dolan, 451. Mattox v. Moulton, 331. XXXVl TABLE OF CASES CITED. [EEFEBENCES ABE TO SECTIONS.] Matzenbaugh v. People, 651. Maxey v. Heckethol-n, 666. Maxwell v. Maxwell, 64, 285, 637. May V. May, 66. V. Llghty, 389, 487. Mayfield v. Forsyth, 298. Maynard v. Maynard, 299, 447, 449, 500, 613. V. Richards, 512, 515, 525. Mc McArthur v. Scott. 127, 415. McAnulty v. McAnulty, 108. McAyeal v. Gullett, 653. McClun V. McClun, 826, 827. McCloskey v. McCormick, 751. McCormack v. Littler, 777. McCormick v. Wheeler, 819. McCann v. Atherton, 660. McCall V. Lee, 44, 182, 464, 483. McCommon v. McCommon, 89, 279. MJcConnell v. McConnell, 398. V. Smith, 50, 67, 175. V. Stewart, 196. McCullom V. Chidester, 97, 234. McCarthy v. Hall, 428. V. Osborne, 134, 148, 196. McClay v. Smith, 285. McCartney v. Ridgeway, 341, 342, 513. McClune v. People, 415. McCleary v. Menke, 742, 750, 752. McCreedy v. Mier, 416, 427, 543. McCollister v. Bank. 449. McCoy V. Morrow, 465. McClure v. Otrich, 659, 662. V. Williams, 608. McDale v. Shepardson, 317. McDavid v. McLean, 653. V. Ellis, 668. V. Rork, 674. McDeed v. McDeed. 679, 681. McDevitt V. Hibben, 251. McDonald v. White, 126, 259, 260. V. Stow, 298. V. People, 594, 597. McElheny v. Musick, 730. McFarland v. McFarland, 177, 215, 238, 765. McGrew v. McGrew, 661. McGee v. McGee, 636. McGillis V. Hogan, 314. McGlinsey's Appeal, 489. Mclntyre v. People, 417, 711. V. Sholty, 776. McKay v. Riley, 653. McKee v. Abbott, 386. McKean v. Vick, 515. McLaurie v. Partlow, 297. McLean v. McBean, 579. McLean County Coal Co. v. Long, 386. McMahill v. McMahill, 491, 492, j 495, 500, 502, 504. I McManus v. Kuth, 528. I McManaman v. Blocks, 633. j McMurphy v. Boyles, 638. I McNabb v. Young, 318. j McNeil V. Caruthers, 164. I McNeer v. McNeer, 582. McNulta V. Lockridge, 127, 132. 1 V. Corn Belt Bank, 665. I McNail V. Ziegler, 673. Means v. Earles, 724, 728. V. Harrison, 538. Medowcroft v. Winnebago Co., 648. Meddeke v. Balder, 836. Meecham v. Steel, 305. Meek v. Allison, 432. Meeker v. Meeker, 261, 272. Meister v. Zimmerman, 659. Menkins v. Lightner, 274. 777. Meredith v. Henage, 142. I Merrifield v. People, 379. I Merrill v. Atkins, 660. TABLE OF CASES CITED. XXXVll [BEFEBENCES ABE TO SECTIONS.] Merritt v. Merritt, 630. V. Simpson, 603, 734. Meserve v. Delaney, 42. Messenger v. Messenger, 382. Metropolitan Nat. Bank v. Jones, 666. Metzen v. Schopp, 134, 177. Meyers v. Ladd, 173. V. Pfeiffer, 625. V. Temme, 726. Michigan L. Co. v. Forer, 667. Middeke v. Balder, 75, 835, 838. Middlesex Co. Bk. v. Hirsh Bros., 666. Millard v. Harris, 587, 589, 613. Mills V. Newberry, 75, 212, 251. Miller v. Miller, 455, 491, 494, 495, 496. V. Kingsbury, 406, 515. V. Harris, 44. V. Williams, 57. V. Markle, 276. V. Simons, 466. V. Heder, 596. V. Travers, 172. V. Didisheim, 398. V. Jones, 515, 518. V. Physick, 717. V. McManus, 751. V. Craig, 777. V. Chittenden, 865. Middleton v. Middleton, 62. Minkler v. Simons, 197. Miskmen v. Culbertson, 575. Mitchel V. McDougal, 673. V. Mayo, 464, 484. V. Pease, 340. V. Sawyer, 643. Mitchinson v. Cross, 672. Mittel V. Karl, 197. Mobile Fruit Co. v. Judy & Son, 607. Moffitt V. Moffitt, 390, 580. Moline W. & P. Co. v. "Webster, 469. Monson v. Hutchinson, 298. Montague v. Selb, 582, 627. More V. More, 116, 266. V Pickett, 297. Moore v. Moore, 116. V. Wright, 114, 398, 651. V. Lyons, 229. V. Smith, 453. V. Horsley, 301. V. Hamilton, 527. V. Bruner, 712. Moores v. Hare, 850, 855. Mooney v. Oleson, 277. Morgan v. Corlies, 678. V. Roberts, 651. V. Stewart, 640. V. Morgan, 589. 613, 869. V. Stevens, 97. V. Johnson, 730. V. Grand Prairie Seminary, 212. V. Hoydt, 776, 809. Morris v. Hogle, 588. Morrison v. Schoor, 133. V. Mayer, 327. V. King, 624. V. Morrison, 627. Morton v. Barnett, 305. Morse v. Thorsell, 633. Mott V. Danville Seminary, 861. Motsinger v. Cole, 469. V. Wolf, 612. Moyer v. Swyggart, 264, 281. Mueller v. Rebhan, 663, 673. Muhkle V. Tiedermann, 858. Mulberry v. Mulberry, 140. Muller V. Conrad, 582, 583. V. Bemner, 703, 726, 730. Mulligan v. Lamb, 215. Mulville V. White, 514. Murfitt V. Jessup, 50, 175, 179, 874. Mustain v. Gardner, 197. Munford v. Miller, 672. Mungate v. Reynolds, 461. XXXVIU TABLE OF CASES CITED. [BEFEBENCES ABE TO SECTIONS.] Munroe v. People, 433, 434, 435, 436. 441. 596, 760. Murdock v. Murdock, 502, 509, 607, 636. Murry v. Strang, 450. Myatt V. Myatt, 415. V. Walker, 86, 272. N Nat'l Bank v. Nichols Shephard Co., 666. Nat'l Cash Reg. Co. v. Navy Co., 682. Neely v. Shephard, 791. Neiman v. Schnitka, 80, 263, 271, 279. Neich V. Gannon, 653. Nelson v. Davis, 306. V. Hayner, 329, 515. 521. Neninger v. Fietsam, 390, 581. Neutzel v. Neutzel, 771. Nevett V. Woodburn. 196, 198, 310, 315, 321, 426, 427, 442. Nevious V. Gourley, 198. Nevell V. Jennings, 337. Newhall v. Nichols, 836. V. Turner, 390, 440, 478, 549. Newell V. Montgomery, 578, 581. Newman v. Willetts, 119. Newton v. Luster, 268. New England Ins. Co. v. Wet- more, 659. New York Iron Mine v. Bank, 666. Nicewander v. Nicewander, 89, 91, 277, 278. NiehofE v. People, 712. Nicoll v. Todd, 633. Nichol V. Miller, 296. v. Ogden, 296. V. School Directors, 652. v. Adams. 340. V. Sargent. 727, 730. V. Scott, 333, 390, 441, 546, 638. Nicholson v. Bettle, 851. Nickrans v. Wilk, 580. Noble V. Runyan, 727. v. Tipton, 174. Noble's Will, 79, 117. Noe v. Moutray, 448. 468, 471, 484. Noffts V. Koss, 633. Norris v. Beyea, 153. V. Camble. 865. Norman v. Hudleston, 530. Norton v. Tuttle. 259. V. Hixon, 703. Northern L. P. Co. v. Shearer, 673. o O'Brien v. Bonfield, 255. O'Connor v. O'Connor. 464. O'Melia v. Mullarkey, 305, 851. Ogden V. Stook, 453. V. Larrabee, 329. Olcott v. Bynum, 297. Oliver v. Oliver, 316. Olney v. Howe, 87. Order of Forresters v. Heath, 684. Orr V. Yates, 857, 866. Osborne v. Jefferson Nat'l Bank, 67, 68. 69. 106, 107. Osgood V. Blackmore, 819, 820. Ottinger v. Specht, 580, 582, 583, 620, 630, 633. Otis V, Gardner. 280. V. Spencer, 672. Ould V. Washington Hospital, 213. Over V. Herrington, 530. Overdeer v. Updegraff, 822. Owen V. Robbins, 683. Pace V. Pace, 429. Padfield v. Pierce, 726. Page V. Administrator, etc., 116. TABLE OF CASES CITED. XXXIX [BEFEBENCES ABE TO SECTIONS.] Page V. Davidson, 603. V. Marsh, 688. Pain V. Farson, 298, 663, 673. Palmer v. Forbes, 453. V. Cook, 851, 872. Parker v. Merritt, 523. Pardridge v. Cutler, 666. Parden v. Briscoe, 838. Parsons v. Ely, 216. V. Miller, 252. Patch V. White, 172, 173. Patton V. Luddington, 850, 855. Payne v. Hook, 47. Peacock v. Marven, 478. Pearce v. Pearce, 617, 661. Pease v. Hunt, 265, 653, 655. V. Rhawn, 679. V. Roberts, 707, 759, 760. Pell V. Ball, 836, 837. Penn v. Oglesby, 265, 664. V. Folger, 289, 290, 392, 331, 332, 333, 441, 586. Penney v. Fallows, 297. Pembia Cons. Sil. Mine Co. v. Pennsylvania, 379. Peoria G. L. & Coke Co. v. Peoria T. Ry. Co., 377. Perrin v. Lepper, 222. Perry v. Bowman, 93, 165. V. Carmichael, 703, 709. Petefish V. Becker, 80, 271, 279. Pettis V. Atkins, 515. Petition of Wilbor, 836. Peterson v. Jackson, 191. Peterman v, U. S. Rubber Co., 613. Peyton v. Jeffries, 617, 622. People V. Allen, 401, 426, 429, 471. V. Admire, 600, 602. V. Atkinson, 602. V. Brooks, 448, 449, 526, 543, 754. V. Borders, 663. V. Benson, 613. V. Church, 772. V. Mccormick, 131, 376, 378. People V. County Court, 44. V. Curry, 435. V. Gilbert, 766. V Gray, 706. V. Harrison, 466. V. Hoffman, 295, 401, 429, 598. V. Hunter, 426. V. Knickerbocker, 126. V. Kohlsaat, 290, 589. 590. V. Kelly, 379. V. McKee, 512. V. Lease, 590. V. Loomis, 733. V. Lanahan, 290, 582. V. Lott, 426, 436, 438. V. Hinrichson, 842. V. Lane, 426, 427. V. Medart, 706, 749. V. Madison Co., 683. V. Moier, 374, 378, 379. V. Miller, 426, 682. V. Moon, 401. V. Petrie, 295, 427, 429. 450. V. Peck, 445. V. Phelps, 450, 486. V. Randolph, 401, 426. V. Seeley, 706, 749. V. Stewart, 713, 750, 754. V. Steel, 717, 761. V. Simon, 380. V. Solomon, 391, 426. V. Stacy, 401, 426. V. Sommers, 401 405. 426. V. Stett, 634. V. Starr, 651. V. Tooney, 429. V. White, 515. Phares v. Barbour, 329. Phalman v. Smith, 546. Phelps V. Phelps, 491, 501, 508, 592. Pfirshing v. Falsh, 611. V. Heiter, 673. , TABLE OF CASES CITED. [BEFEBENCES ABE TO SECTIONS.] Phillips V. Hood, 261. V. South Park Comraission- ers, 297. V, Edsall, 300. V, Webster, 685. V. Phillips, 726. Pickler v. Pickler, 298. Pigg V. Carroll, 661, 662, 663, 673. Pingree v. Jones, 281. Pinkstaff v. People, 435. Pinneo v. Knox, 733. T. Goodspeed, 486, 587. Pittard v. Foster, 269, 270. Pitzel V. Schneider, 309. Plain V. Roth, 265, 660, 664. Pratt V. Northam, 424. V. Trustees B. Society, 608. Preachers Aid Soc'ty v. England, 178, 304, 317. Presbyterian Church v. Emmer- son, 668. V. Venables, 861. Price V. Laing, 307. Pritchett v. People, 424. Pritchard v. Walker, 75. Primmer v. Clabaugh, 674. Propst V. Meadows, 580, 706. Provident Hospital v. People, 376, 379. Prutsman v. Baker, 717. Podrasnik v. Martin Co., 515. Pool V. Potter, 603. V. Phillips, 298. Pooler V. Christman, 92, 277. Pope V. Dapray, 299. V. Pope, 141. V. Dodson, 608. Poppers V. Miller, 673, 674. Post V. Roherbach, 309, 320. Potter V. Potter, 131. V. People, 334. Poulter V. Poulter, 215. Powers V. Godmise, 197. Powell V. Kettelle, 606. V. Rich, 452. Powell V. Powell, 660, 662. Purdy V. Hall, 92, 256, 262, 277. Putnam v. Wadley, 268. Pyle V. Pyle, 265, 270, 676. V. Oustatt, 660, 672. Pynchon v. Day, 669, 678. Pyott V. Pyott, 726, 771. Q Quincey v. Rogers, 163. R Railway Co. v. Corson, 667. V. Prast, 667. V. Story, 667. V. Bank, 666. V. Randolph, 657. V. Kelly, 617, 623. V. E. St. Louis, 847. V. Curtenius, 627. V. Beavor, 451. V. Hock, 261. V. Lane, 726. V. Am. S. B. Co., 668. V. Shires, 679, 683. V. Winters, 683. V. Eggermann, 683. V. Binder, 683. V. Haley, 726. V. Keck, 726. Railsback v. Lovejoy, 182, 196, 311, 852, 862. Rainey v. Vance, 523. Ralston v. Wood. 426, 427, 761. Ramsey v. Ramsey, 388, 415, 486. Rand v. Walker, 617. Randall v. Randall, 871. Rankin v. Rankin, 200, 215, 296. Randolph v. People, 616. V. Trustees of School, 595. Rann v. Rann, 649. TABLE OF CASES CITED. xli [BEFEBENCES ABE TO SECTIONS.] Ransdell v. Boston, 303. Rapp V. Phoenix Ins. Co., 606. Rassieur v. Jenkins, 464. Rawson v. Rawson, 135. V. Corbett, 617. V. Curtis, 666. Ray Ex. v. Vilas, 522. Raybold v. Raybold, 297. Raymond v. Vaughn, 775. Reagon v. Long, 398. Ream v. Lynch, 754, 761. Redmond v. Collins, 127a. Redlich v. Bouerlee, 668. Reed v. Kidder, 661. V. Reed, 298, 299. V. Peterson, 301. Reed, Murdock & Co. v. Sheffy, 324, 333. Reedy v. Canfield, 580. V. Millizen, 253. Reeves v. Herr, 672. Regard v. McNeil, 300. Regent v. Bell, 663. Reich V. Berdel, 621. Reid V. Reid, 297. V. Corrigan, 232. V. Morton, 739, 740. Rendleman v. Rendleman, 641. Renfrow v. Pearce, 332. Remick v. Emig, 519. Remann v. Buckmaster, 659. Republican L. Ins. Co. v. Swigert, 665. Retzell V. Miller, 467. Renter v. Struckart, 634. Reynolds v. Adams, 269, 277. V. Summer, 298. V. Strange, 323. V. Williams, 583. V. People, 591. V. Ferree, 666. Rhode V. McLean, 116. Rhoades v. Rhoades, 763, 870. Rice V. Rice, 298. Richie v. Cox, 638. Kicker v. Kessler, 93, 851. Richards v. Miller, 134, 135, 249, 250, 310. V. Greene, 712. Richardson v. Eveland, 242, 243, 247. V. Ranson, 240. V. Sternburg, 265. V. Richardson, 448, 513. V. Emberson, 613. Ridden v. Thrall, 337. Ridgeway v. McCartney, 337, 341. V. Underwood, 134, 200, 310. Ridgeley v. People, 290, 586. Rigdon V. Conly, 678. Rigg V. Wilton, 127, 258, 264. Ring V. Lawless, 86, 273, 274, 279. Rish V. Commonwealth, 378. Rissman v. Wierth, 139, 176, 191, 192. Roan V. Kirkpatrick, 390, 439, 549, 586, 750. Roberts v. Roberts; 93, 165. V. Woods, 661. V. Draper, 336, 337. V. Pierce, 660. Robertson v. Brost, 674. Robins v. Butler, 329. Robinson v. Brown, 682. V. Ruprecht, 60. V. Botkins, 296, 310. V. Millard, 429. Robinson's Will, 131. Rochey v. Downey, 613. Roe V. Taylor, 82, 263. Rogers v. Tuley, 318. Rohn V. Rohn, 392. Rohan v. Bluhm, 651, 776. Rose V. Hale, 134. Rosenthal v. People, 378, 379. V. Prussing, 395, 413, 415. V. Renick, 408, 470, 477, 579. Ross V. Sayler, 665. V. Smith, 495. Roth V. Michalis, 305, 851. xlii TABLE OF CASES CITED. Rothchlld V. Sessel, 668. Rothstein v. Siegel, Cooper & Co., 670. Roughan v. Morris, 771, 778. Rountree v. Talbot, 851. Rucker v. Redmon, 591. Ruck V. Rock Island, 864. Ruckman v. Alwood, 660. Ruddell V. Wren, 854. Rudstone v. Rudstone, 168. Ruffin V. Farmer, 159, 602. Ruggles V. Gratton, 668. Russell V. Hallett, 836. V. Happ, 661. V. Hubbard, 464, 465, 471, 475. V. Madden, 50, 75, 95. V. Peyton, 329. Ruston V. Ruston, 169. Rutherford v. Morris, 80, 84, 86, 257, 269, 272, 275, 278, 279. Rutledge v. Rutledge, 494. Ryan v. People, 712. V. Allen, 182, 193, 195. V. Jones, 601. Ryder v. Topping, 676. Ryhiner v. Frank, 127, 255. Rymes Appeal, 210. Saboni v. Kirkman, 606. Saeger v. Bode, 191, 196. Saffer v. Mast, 777. Sale V. Moore, 141. Salem Nat'l Bank v. White, 104 Salisbury v. Aldrich, 82. Sands v. Potter, 777, 792. Sanger v. Nadlehoffer, 127, 428. Saw Mill Co. V. Dock, 389. Sayles v. Christie, 68, 75, 640, 661 Scanlon v. Cobb, 777. Seago V. People, 663, 750. Seager v. Bodie, 177. [EEFEBENCES ABE TO SECTIONS.] Searle v. Galbraith, 777, 820. Seavey v. Seavey, 336, 512. Sebastian v. Johnson, 314, 583. Seibert's Appeal, 210. Selb V. Montague, 582, 627, 634. Sewell V. Roberts, 640. Sexton V. Sikking, 584. V. U. S. Y. & T. Co., 665. V. Brown, 668. Seymour v. Richardson Fueling Co., 665. Schaefer v. Schaefer, 93, 309. V. Wunderle, 682. Schaeffer v. Burnette, 480, 611, 733. Scheel v. Eidman, 485, 713. Scheible v. Rinck, 56, 638, 639. Scheerer v. Scheerer, 298, 662. Schelling v. County of Kankakee, 796. Schenck v. Schenck, 130, 391, 405. Schlee v. Guckenheimer, 606. Schlink v. Moxton, 468, 484. Schmidt v. Pierce, 7 70. V. Schmidt, 279. V. Glade, 471. V. Shaver, 666, 724, 727, 749, 751. V. McBean, 726. Schnell v. Chicago, 395, 408. Schneider v. Manning, 80, 82, 86, 89, 270, 272. V. Kabach, 674. Schnebly v. Schnebly, 617, 622, 633. School Trustees v. Kirwin, 325, 703. Schoot V. People, 683. Schofield V. Olcott, 203, 849, 850, 862, 864. Schope V. Schaffner, 634. Schotte V. Puscheck, 668. Schouler Petitioner, 210. Schultz V. Houfer, 280. V. Schultz. 865. TABLE OF CASES CITED. xliii [BEFEBENCES ABE TO SECTIONS.] Schumacher v. Schmidt, 100. Scott V. Bassett, 766, 777. V. Scott, 64. Sconse v. Henderson, 659. Seigwald v. Seigwald, 872. Seymour v. Bowles, 851, 874. Sharp V. Sharp, 255. Shackelton v. Sebree, 856. Shaw V. Camp, 258, 281, 282, 337. V. Woodcock, 323. Shea V. Doyles, 514, 664. Sheldon v. Harding, 298. Shelburne v. Robinson, 601. Shepard v. Carrill, 119. Shepherd v. Speer, 44, 648. V. Nottidge, 142, V. Rhodes, 432. Sherman v. Sherman, 601. V. Saylor, 600. V. White, 331. V. Whiteside, 468, 483, 484. Sherrell v. Christ's Church, 376. Shevalier v. Silager, 261. Shields v. Smith, 429. Sholty V. Sholty, 307, 324, 330, 331. Short V. Johnson, 538, 550. Show V. Schoonover, 660. Shup V. Calvert, 584. Shute V. Doer, 694. Siddon v. Cocerill, 855. Sick V. Smith, 633, 642. Sill V. Sill, 617, 618. Silverman v. Chase, 490, 523. V. Kristufek, 304, 305, 317. Simmons v. Oliver, 331. Simpson v. Haue, 627. v. Simpson, 64, 66, 216. Singleton v. Scott, 313. Singloff V. Bruner, 258, 266, 267. Sisk V. Woodruff, 679. Skinner v. McDowell, 864. V. Newberry, 449. Skiles V. Switzer, 317. Skrymsher v. Northcote, 197. Slater v. Norton, 168. V. Gruger, 197. Sloan V. Graham, 583. V. Sloan, 96. Sloniger v. Sloniger, 108, 633. Small V. Small, 278. Smith V. Bartholomew, 766. V. Co-operative D. Assn., 666. V. Curry, 93. V. Dennison, 225, 614. V. Gibbons, 666. V. Goodrich, 465, 473. V. Hamline, 80, 92, 277. V. Henline, 256, 258, 277, 665. V. Hutchinson, 603. V. Kenny, 177. V. Kembell, 191. V. Kimball, 851, 866, 872. V. Long, 672. V. McConnell, 67. V. McLaughlin, 463. V. Bell, 874. V. Moore, 453. V. Price, 534. V. Smith, 379, 443, 510, 661, 663, 673. V. Summer's Manf'g Co., 285, 606. V. Smock, 116. V. West, 651, 662. V. Willard, 298. Snydacker v. Swan L. & C. Co., 464. Solomon v. Holden, 290, 406. V. People, 406, 415, 427. Spades v. Barrett, 323. Spalding v. White, 127, 255. Spangler v. Jacoby, 679. Speck V. Pullman P. C. Co., 776. Spellman v. Dowse, 737, 740, 745. V. Matthewson, 739. Spencer v. Boardman, 116, 502, 505, 636, 662. V. Spruell, 854. Sperry v. Fanning, 727. xliv TABLE OF CASES CITED. [BEFEBENCES ABE TO SECTIONS.] Spire V. Lovell, 489. Sprigg V. Gannemann, 657. Spring V. Crane, 737. V. Kane, 739. Spurck V. Cook, 642. Stahl V. Stahl. 299. Standard El. Co. v. Crane El. Co., 682. Stanley v. Leonard, 305. Stanton v. Embry, 47. Stark V. Conde, 855. Starr v. Moulton, 178, 603. Starring v. Keating, 532. State V. Gorman, 842. V. Johnson, 401. V. Corey, 401. V. Young, 401. V. Marm, 842. Steib V. Whitehead, 302. Stein V. "Whitehead, 90. Steel V. La Frambois, 622. V. Clark, 662. Stetson V. Stetson, 102. Stettaner v. White, 668. Stewart v. Stewart, 851. V. Fellows, 143, 661. V. Kirk, 265, 653. Strauther v. Mohler, 662. Streeter v. People, 127. Steidel v. People, 682, 683. Steinman v. Steinman, 512. Stevens v. Farrell, 612. V. Brown, 265. V. Van Cleve, 272. V. Edwards, 855. Stevenson v. Crapnell, 297. V. Westfall, 703, 704. V. Ernest, 682. Stickel V. Crane, 134, 237. Stillman v. Young, 471. Stinde v. Goodrich, 836. Stoetzell V. Fullerton, 609. Stokes V. Kane, 659. Stoff V. McGinn. 215, 252, 399, 546. Stoltz V. Doering, 75. Story's Will, 86, 95, 96. Stookey v. Stobkey, 625. Stoors V. St. Luke's Hospital, 258, 259, 260. Stone V. Steel, 633. V. Clark, 464. V. Haskins, 487. V. Wood, 416, 468, 484, 543. V. Fargo, 478. Stonecipher v. Hall, 265. Strawbridge v. Strawbridge, 134. Strauss v. Phillips, 648, 467, 468. Strawn v. Strawn, 491, 492, 495. Strain v. Sweeney, 134, 854, 866, 874. Strode v. McCormick, 310. Strubher v. Belsey, 753. St. Peters R. C. Church v. Ger- maine, 208. Stuke V. Glaser, 136. Stunz V. Stunz, 497, 726. Sturges V. Ewing, 75. Sues V. Leinouh, 633. Sugden v. Lord St. Thomas, 267. Sullivan v. Breen, 611. Sumner v. McKee, 495. Summers v. Smith, 134, 851, 866, 874. v. Highley, 177, 312. Supervisors & etc. v. Colers, 401. Sutherland v. Sutherland, 636. V. Harrison, 491, 496, 579. Sutton V. Read, 638. Supply Co. V. Davis Manf'g Co., 607. Swearington v. Gulick, 580. v. Inmann, 86, 256, 258, 273. Sweitzer v. Skiles, 315. v. Kee, 487. Swift V. Lee, 173. Talcott V. Dudley, 575. Tanton v. Keller, 663, 667. TABLE OF CASES CITED. zl\r [BEFEBENCES ABE TO SECTIONS.] Tarrant v. Kelly, 510. Tate V. Tate, 264. Tatum V. Wright, 379. Tautenham v. Dunz, 166, 204. Taylor v. Taylor, 637. V. Pegram, 80, 92, 266, 271, 277, 676. V. Cox, 131. V, Keep, 209. V. Harrison, 340, 513. V. Walson, 316, 318. V. Deblois, 424. V. Deplock, 836. Teed v. Morton, 855. Telford v. Patton, 336, 337, 339, 341, 342, 378, 513. V. Boggs, 495. Terry v. Anderson, 255. Tewalt V. Irwin, 464, The Puritan, 665. The Benefactor, 665. Thomas v. Miller, 134, 177. V. Whitney, 299. V. Black, 429. V. Eckard, 863. Thompson v. Bennett, 80, 262, 266, 271, 274, 277, 278. V. Owen, 131. V. Black, 427, 465, 485, 657. V. Love, 530. V. Mason, 682, 685. V. Becker, 866. V. Adams, 854. V. Luddington, 855. Thorndyke v. City of Boston, 374. Thorp V. Goewery, 465. V. Wheeler, 675. Thornton v. Mehrig, 526 Tibbs V. Allen, 630. Tilden v. Green, 309. Tilton V. Pearson, 583. Tillson V. Ward, 390. Tilley v. Bridge, 528, 584. Tisdale v. Conn. Mut. L. Ins. Co., 253. Tinkler v. Cox, 680. Tobey v. Miller, 398. Tracey v. Hadden, 485, 586. Transportation Co. v. Gill, 173. Treleaven v. Dixon, 662, 673. Trepp V. Baker, 674. Trish V. Newhall, 86, 272. Trogdon v. Murphy, 871. Trowbridge v. Cross, 523. Trustees of Schools, 428. Trustees v. Garvey, 608. Trust Co. V. Railroad Co., 57. V. Palmer, 451, 606. Truesdall v. Burke, 392. Trutt V. Cummons, 392. Trunkey v. Hedstrom, 657. Tucker v. People, 598. Tuller's Will, 88. Turner v. Hause, 177, 191. Turney v. Smith, 627. Tyler v. Tyler, 103. V. Sanderson, 329. U Uhlich V. Muhlke, 89, 315. Underwood v. Wing, 836. Unknown heirs of Langworthy v. Baker, 395. Union Surety Co. v. Tenney, 667. Union National Bk. v. Goetz, 325. R. & T. Co. V. Schacklet, 387. 512. Trust Co. V. Trumble. 616. United States v. Bainbridge, 694. V. Duncan, 639. V. Perkins, 260. V. Cheeseman, 401. V. Walker, 439, 586. United Mortgage Co. v. Sperry, 605, 733, 735. Casualty Co. v. Kacer, 836, 838. xlvi TABLE OF CASES CITED. [BEFEBENCES ABE TO SECTIONS.] Thompkins, 77, 167, Updike V 168. Ure V. Ure, 305, 306. U. R. & T. Co. V. Shacklett, 445 Vallette v. Tedens, 298. V. Bennett, 318. Vanderoier v. Fetta, 487. Vanderhayden v. Crandall, 305. Van Schaak v. Leonard, 201. Van Orlander v. Carpenter, 193. Van Buskirk v. Van Buskirk, 328, 776. Van Meter v. Heirs of Love, €01. Van Bibber v. Bank, 666. Vannetta v. Carr, 140, 191. Vestal V. Garrett, 110, 163, 173. Vidal V. Girard, 213. Village of Hyde Park v. Bordon, 864. Virgus V. Bannon, 662. Virgin v. Virgin, 578, 579, 580, 581, 633, 634. Viskniskii v. Bleakley, 473. Volbracht v. White, 653, 656, 676. Voigt V. Kersten, 838. Voris V. Sloan, 190, 753, 822, 854. Von Kettler v. Johnson, 580, 597. Von Giessen v. Bridgford, 386. Vyne v. Glen, 323. W Wackerly v. People, 757, 758, 759, 760. Wabash R. R. Co. v. Schacklett, 445. Wade V. Pritchard, 512. Wadswortli v. Duncan, 665. V. Connell, 44, 417, 711. Wagonseller v. Rexford, 674. Walker v. Doan, 623, 682. V. Douglas, 610. V. Craig, 541. V. Walker, 130, 865. V. Diehl, 579. V. Pritchard, 137, 138, 188, 191, 87L V. Brown, 694, 695. V. People, 375, 377. V. Chovin, 597. V. Welber, 386. V. Welker, 388. V. Kimball, 420. Walbridge v. Day, 416. Waldo V. Cummings, 205, 869, 870, 871. Walford v. Deemer, 492. Wallace v. Reddick, 64. V. Bozarth, 140, 191. V. Rappleye, 67. V. Whitehead, 256. V. Carpenter, 298. V. Monroe, 488. Wall V. Bissell, 398. Walton V. Follansbee, 285, 297. Walters v. Witherell, 660. Walter v. Kirk, 541. Walsh V. Reis, 625. Ward V. Ward, 67, 68, 104, 149. V. Armstrong, 315, 329. V. Dunham, 468, 484. Wardswell v. McDowell, 399, 546. Wardwell v. McDonald, 218. Warner v. Scott, 610. V. People, 712. Wanneker v. Hitchcock, 530. Washington v. L. & N. R. Co., 538. Watt V. McGilliard, 707. Watts V. Dull, 105. Waters v. State, 401. V. Stickney, 127a. V. Waters, 273. Watkins v. Shaw, 424. V. Dean, 851. TABLE OF CASES CITED. xlvii [references are to sections.] Waterman v. Alden, 295, 313, 322, 326, 328, 532. Watson V. Watson, 275. Waugh V. Moan, 79, 117, 653. Waughop V. Bartlett, 449. Way V. Harriman, 660. V. Cox, 796. Weaver v. Weaver, 501, 502, 503, 504. Webster v. Birchmore, 253. V. Yorty, 278. V. Conley, 602, 730. Weed v. Waterbury, 389. Weeks v. Gibbs, 398. Weer v. Grand, 612. Weir v. Chidester, 97. V. People, 424, 600. v. Brooks, 451, 607. Weigle V. Brautigam, 668. Weill V. Zache, 665. Weingartner v. Pabst, 659. Weld V. Sweeney, 79. Welch V. Hoydt, 478, 528. V. Wallace, 471, 475. V. Savings Bank, 169, 170, 182, 864, 867, 868, 869, 871. V. Sykes, 682. Wells V. Miller, 448, 449, 526. Wellman v. Highland, 514. Wellner v. Jones, 860. Werner v. Thornton, 215, 546, 580, Wernse v. Hall, 431. Wentworth v. Cook, 606. West V. Fitz, 140, 177, 251, 317. v. Maples, 389. Weston V. Weston, 862. Wetheral v. O'Brien, 325. V. Harris, 603. Wheeler v. Dawson, 464, 468, 484, 625. V. Wheeler, 127, 255. White V. Ross, 297, 299. V. Cannon, 297, 300. V. Briggs, 142. V. Glover, 217, 316. White V. Sherman, 292, 307, 315, 321, 324, 329, 330, 331, 332. White Memorial Home v. Price, 117, 130. Whiteside v. Taylor, 707. Whitesides Appeal, 253. Whitbeck v. Estate of Ramsey, 485. Whitlock v. McClosky, 487. Whitman v. Baker, 163. V. Fisher, 753. Whiting V. Nicholl, 253. Whitley v. Equit. L. A. Society, 836. Whitney v. Peddicord, 326, 461. Whittaker v. Whittaker, 651. Whitson V. Grovsner, 56. Whipple V. Eddy, 80, 83, 261, 274, 279. Whyte V. Mann, 837. Wicker v. Ray, 193, 195. Wickliffe v. Lynch, 651. Wickiser v. Cook, 727. Wiggins Ferry Co. v. C. & M. Ry. Co., 191. Wilber v. Wilber, 92, 266, 274, 277. Wilcox V. Palmer, 775. Wilcoxon V. Reed, 673. Wild V. Sweeney, 124. Wilkins v. Ellett, 75, 415. Wilkinson v. Thomas, 66. V. Dening, 709, 710. Willemin v. Dunn, 777. Will V. Will, 127. Willenborg v. Murphy, 449. Williams v. Williams, 173, 230, 519. V. Rogers, 579. V. Brown, 298. V. McConico, 305. V. Chamberlain, 337, 573. V. Morton, 401. V. Adams, 523. V. Rhodes, 591. V. Johnson, 645. xlviii TABLE OF CASES CITED. [BEFEBENCES ABE TO SECTIONS.] "Williams v. Walker, 751. V. Case, 116. Willbanks v. Willbanks, 201, 244. Willis C. & M. Co. V. Grizzell, 51, 75. Wilson V. Leland, 44. V. Root, 101. V. Mason, 314. V. Kirby, 485. V. Gault, 863. Winchell v. Edwards, 667. Windslow v. Leland, 464, 471. Winch V. Brutton, 141. Wingate v. Pool, 461. Wing V. Sherrer, 116. V. Angrave, 836. V. Goodman, 674. T. Dodge, 528, 583, 747, 781, 820, 821, 822, 826, 827, 828. Wisdom V. Becker, 399, 600. Witcomb V. Williams, 173. Witham v. Brooner, 220, 303, 304. V. People, 772. Witman v. Brooner, 856. Winslow V. People, 713, 717. Wood V. Stone, 576. V. Johnson, 462, 591, 613. V. Vanderburg, 489. Woodburn v. Woodburn, 300, 336. Woodhouse v. Crandali, 325. Woodward v. Woodward, 148. Wooley V. Schrader, 201, 245. Wolf V. Griffin, 600. Exr. V. Beaird, 44, 485, 592. V. Bollinger, 261. V. Ogden, 630. Wolfer V. Hemmer, 93, 191. Wolverton v. Taylor, 479. Wombacher v. Barthelme, 80, 271. Woman's U. M Society v. Mead, 312. Wright V. Wallbaum, 43 395, 408, 432, 770. V. Simpson, 112, 113, 114, 127, 131, 132. V. Dunn, 169, 868. V. Purson, 305. V. Marshall, 310. V. People, 597. V. Conley, 724. V. Barry, 851. Wunderlee v. Wunderlee, 379. Yarde v. Yarde, 636. Yoe V. McCord, 82, 257, 272. Yokem v. Hicks, 513, 661, 664. Yonley v. Lavender, 47. York V. York, 495, 497, 526. Young V. Martin, 142. V. Young, 851. V. Harklervad, 854. V. Larain, 708, 757, 760. V. Robertson, 154. V. Graft, 285. V. People, 427. V. Wittenmyre, 591. Zackman v. Zackman, 63, 502, 509. Ziegler v. Clinton M. Life Ins. Co., 670. THE LAW OF ESTATES AND PROBATE PRACTICE CHAPTER I THE PROBATE COURT Sec. 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. The constitutional provision authorizing such court. Style of court, seal. Where to be held. Election of judge, term of of- fice. Judge to take oath. Jurisdiction. Terms of court always open. Jury trial fees of jurors. Practice and pleadings. Duties of sheriff. When judge interested. Appeals. Appeal sale of real estate. Clerk, election, term. Clerk to give bond. Clerk may appoint deputies. Duties of clerk. County board, stationery. OflBces and furniture. Books to be delivered to suc- cessor. How records to be kept. Fees of clerk. Clerks fees in Cook county. Salary of Judge. Vacancy how filled. Sec. 26. When clerk may designate and call any county or probate judge to hold court. 27. Repeal of act. 28. Emergency. 29. Probate Judge not to act as attorney, etc. 30. Penalty, 31. Interchange of county and pro- bate judges. 32. Jurisdiction to control testa- mentary trusts created by original wills. 33. Practice in such case. 34. Power to sell real estate, etc., under such act, 35. Sales, how made and executed, where executor, etc., dies, 36. Clerks fees, under act. 37. Not to be construed to repeal land title act. 3S. Note, Lynch v. Hutchinson, act declared not legally passed. Conclusive and mandatory in certain States, in others joui'nal may be looked in- to. Sec. 1. The Constitutian of the State of Illinois of 1870, granting power to the General Assembly to establish Probate Courts. Article VI, section 20, is as follows: "The General Assembly may provide for the establishment of a probate court 1 3 THE LAW OP ESTATES. in each county having a population of over fifty thousand, and for the election of a judge thereof, whose term of office shall be the same as that of the county judge, and who shall be elected at the same time and in the same manner. Said courts, when established, shall have original jurisdiction of all probate matters, the settlement of estates of deceased persons, the ap- pointment of guardians and conservators, and settlement of their accounts; in all matters relating to apprentices, and in cases of the sales of real estate of deceased persons for the payment of debts. "^ The authority given by the con- stitution to establish probate courts was exercised by the Legislature of Illinois, in 1877, when "An Act to establish probate courts in all counties having a population of seventy thousand or more, to define the jurisdiction thereof, and regu- late the practice therein, and to fix the time for holding the same." (Title of act approved April 27, 1877, amended by act approved May 21, 1881. In force July 1, 1881 ; and by amend- ments thereafter approved and in force, April 1, 1885 ; July 1, 1897; July 1, 1899, July 1, 1903; July 1, 1905.) Some of the original sections have been entirely rewritten, and some amended in part. The act relating to the establishment of said court, and the amendments thereto are given with exten- sive authorities, in Starr & Curtis Annotated Statutes of Il- linois, with Jones & Addington's Supplements thereto.^ "We give the act as it now stands, including the amendment of 1905.^ 2. Style of court — seal. § 1. Be it enacted by the People of the State of Illinois, represented in the General Assembly, That there shall be established in each county of this state, now 1— Starr & Curtis Annotated 2— Vol. 1, pp. 1194 to 1200, in- Statutes of Illinois, with Jones & elusive, and authorities cited; Addington's Supplements thereto. Vol. 4, pp. 370, 371, and authori- Vol. 1, pp. 154, 155, and author!- ties cited; Vol. 5, p. 154, and au- ties cited; Vol. 4, p. 13, and au- thorities cited; Kurd's R. S. of thorities cited; Kurd's R. S. of 111., 111., 1905. 1905, p. 66. 3— Kurd's Statutes, pp. 627-631 inclusive. THE PROBATE COURT. 3 created and organized, or which may be hereafter created and organized, and which has a population of seventy thousand or more, a court of record, to be styled "The Probate Court of (name of) County." Such court shall have a seal and may from time to time, as may be necessary, renew or alter the same. The expense of such seal and of renewing and altering the same shall be paid by the county.'* 3. Where to be held. § 2. Said courts shall be held in the court houses of the respective counties in which they shall be established;, or in the usual places of holding courts, or in suit- able rooms provided therefor at the county seat. 4. Election of judge — term of office. § 3. The judge of said court in each county in which such court shall be estab- lished shall be elected on the Tuesday next after the first Mon- day in November, at the same election at which the county judge is elected, and every fourth year thereafter, and shall enter upon the duties of his office on the first Monday of De- cember after his election, and shall hold his office for a term of four years and until his successor is elected and qualified, and shall be known as the probate judge of (name of) county. 5. Judg'e to take oath. § 4. The probate judge of each county in which a probate court shall be established shall, before entering upon the duties of his office take and subscribe and file with the secretary of state the oath required by the constitution. 6. Jurisdiction. § 5. Probate courts shall have original jurisdiction in all matters of probate, the settlement of estates of deceased persons, the appointment of guardians and con- Bervators and settlement of their accounts, and in all matters relating to apprentices, and in cases of the sales of real estate of deceased persons for the payment of debts. And as soon 4 — As amended by Act approved May 21, 1881, in force July 1, 1881. L. 1881, p. 72. 4 THE LAW OF ESTATES. as such court is organized in any county, the county court of such county shall turn over to the probate court all of its probate records, and all files, books and papers of every kind relating to probate matters in such county court, and all rec- ords, files and papers in matters of guardianship and con- servators, and the clerk of the probate court shall be author- ized to demand and receive from the county clerk all such records, files, books and documents, and upon the receipt thereof, the probate court shall proceed to finish and complete all unfinished business relating to probate, guardianship and conservatory matters in the manner provided by law. 7. Terms of court — ^always open. § 6, The terms of the probate court shall commence on the first Monday of each month during the year, and shall be always open for the granting of letters testamentary, letters of administration and guardianship and for the transaction of probate business and all other matters of which it has jurisdiction, and shall con- tinue open from day to day until all business before it is dis- posed of.5 8. Jury trial — fees of jurors. § 7. The probate court shall have the power to impanel a jury for the trial of issues or matters of fact in any matter or matters pending before the court, and for such purpose the court may at any time, when it becomes necessary to have a jury, direct the clerk of said court to issue a venire for either six or twelve competent jurors, and deliver the same to the sheriff or coroner or any bailiff of the court, who shall summon such jurors from the body of the county to be and appear before said court at any term or day named in such venire, and if by reason of non-attendance, challenge or otherwise, said jury shall not be full, the panel may be filled by talesmen. Said court shall have the same power to compel the attendance of jurors and witnesses as 5 — As amended by Act approved of acts in conflict herewith are May 13, 1905, in force July 1, 1905, hereby repealed. And by Act ap- L. 1905, p. 188. All acts or parts proved May 13, 1905, in force July 1, 1905. THE PROBATE COURT. 5 the circuit court has or may hereafter have, and jurors to act as such in said court shall possess the same qualifications and be entitled to the same privileges of exemption and subject to the same rules of challenge for cause or peremptorily as jurors in the circuit courts of the state. "When such jury shall be brought into said court, the court may retain such jury during the term or any portion thereof, as may be necessary for the trial of any matter or matters of fact which in the discretion of the court requires a jury. The per diem and mileage of said jurors shall be the same as they are for jurors in the circuit court, to be paid out of the county treasury upon the presentation of a certificate of the clerk of said court, issued to each juror at the time of their discharge, certifying to the number of days he may have attended court as a juror and the amount of juror's fees and mileage due him. 9. Practice and Pleadings. § 8. The process, practice and pleadings in said court shall be the same as those now provided, or which may hereafter be provided, for the probate practice in the county courts of the state, and all laws now in force, or which may hereafter be enacted concerning wills, or the administration of estates, shall govern and be applicable to the practice in the probate courts of the state. 10. Duties of sheriff. § 9. The sheriff, in person or by his deputy, shall attend the sittings of the probate court of his county, preserve order in the same and execute the legal com- mands and process thereof. 11. When judge interested. § 10. Whenever the probate judge of any county is interested in the estate of any deceased person, and the letters testamentary or of administration shall be grantable in the county of such judge, such estate shall be probated in the county court of such county, unless the county judge be also interested, in which event the facts of such interest may be entered of record in the probate court of the county and certified to the circuit court of the county, and upon the filing of such certificate with the clerk of the 6 THE LAW OF ESTATES. circuit court, such court shall have full and complete jurisdiction in all matters pertaining to such estate under all laws of this state concerning the administration of estates or the probate of wills, and in all cases so transferred the clerk of said circuit court shall have the same power in all matters of such estate, in term time or vacation, that the clerk of the probate or county court has: Provided, that, if the probate judge is only interested as a creditor, no change may be made except in relation to his claim. 12. Appeals. § 11. Appeals may be taken from the final orders, judgments and decrees of the probate courts to the circuit court of their respective counties in all matters except in proceedings on the application of executors, administrators, guardians and conservators for the sale of real estate, upon the appellant giving bond and security in such amount and upon such condition as the court shall approve, and upon such appeal the case shall be tried de novo. 13. Appeals — sale of real estate. § 12. Appeals and writs of error may be taken and prosecuted from the final orders and decrees of the probate court to the supreme court in pro- ceedings on the application of executors, administrators, guard- ians and conservators for the sale of real estate. Such appeals and writs of error, when not otherwise provided, shall be taken and prosecuted in the same manner as appeals from and writs of error to the circuit court. 14. Clerks — ^election — ^term. § 13. There shall be elected at the same time as the probate judge is elected a clerk of the probate court, who shall hold his office for a term of four years and until his successor shall be elected and qualified. Before entering upon the duties of his office he shall take and sub- scribe the oath required by the constitution of the state. 15. Clerk to give bond. § 14. Every clerk shall, before entering upon the duties of his office, give bond with two or more sureties, to be approved by the judge of the court of THE PEOBATE COURT. 7 which he is clerk, which bond shall be in such penalty, not less than five thousand dollars ($5,000), as may be determined by such judge, payable to the People of the State of Illinois, and conditioned for the faithful performance of the duties of his office and to pay over all moneys that may come to his hands by virtue of his office to the parties entitled thereto, and to deliver up to his successor in office all moneys, papers, books, records and other things appertaining to his office whole, safe and undefaced, which bond shall be copied at large upon the records of the court and then filed in the office of the secretary of state, upon which such clerk shall be immediately commis- sioned by the governor and enter upon the duties of his office. 16. Clerk may appoint deputy. § 15. Every such clerk shall attend in person to the duties of his office when it is practicable so to do, and perform all the duties thereof which can reasonably be performed by one person: Provided, how- ever, he may, when necessary, appoint deputies, who shall take the same oath or affirmation as is required of the principal clerk, which shall be entered at large upon the records of the court, and the principal clerk shall in all cases be responsible for the acts or omissions of his deputies. 17. Duties of Clerk. § 16. Every such clerk shall attend the sessions of their respective courts, issue all process thereof, preserve all the files and pages thereof, make, keep and pre- serve complete records of all the proceedings and determina- tions thereof, and do and perform all other duties pertaining to their said offices as may be required by law or the rules and order of their courts respectively, and shall enter of record all judgments, decrees and orders of their respective courts before the final adjournment of the respective terms thereof or as soon thereafter as practicable. 18. County board— stationery. § 17. It shall be the duty of the county board of every county in which there shall be established a probate court in pursuance of this act, to provide the clerk thereof with all necessary blanks, books, stationery. 8 THE LAW OF ESTATES. pens and ink for their respective offices, the same to be paid for out of the county treasury, and in case such supplies shall not be so furnished, then the clerk of such court shall furnish the same from time to time as may be necessary, the cost thereof to be allowed by the county board and paid out of the county treasury. 19. Offices and furniture. § 18. The necessary rooms, of- fice and furniture, the proper vaults or other safe means of keeping the archives of their respective offices shall be provided for the clerks of the probate courts in their respective counties by the county and the cost thereof paid out of the county treasury. 20. Books to be delivered to successor. § 19. It shall be the duty of the probate clerk to deliver over to his successor in office, and of his successor to demand and receive from him, all the books, papers, records and other things appertaining to his office, or in his possession by virtue of his office, and should he refuse or neglect to do so, the court shall have power to use such compulsory process and take such measures as may be necessary to compel the delivery as aforesaid, ac- cording to the true intent and meaning hereof. 21. How records to be kept. § 20. In all matters con- cerning the probate of the estates of deceased persons, the granting of letters testamentary or of administration, letters of guardianship, the manner of keeping the records of said court, the form of docket entries, journals, fee books, mem- orandums, the form of process, the recording of papers and documents connected with any matter of which said court has jurisdiction, the clerk of said court shall be governed by and follow all laws now in force, or which may hereafter be enacted, concerning similar matters in the county courts of the state. 22. Fees of clerk. § 21. The clerk of the probate court shall charge and collect for each official act the same fees as THE PEOBATE COURT. 9 are allowed to clerks of the county courts of the state in pro- bate matters, which fees shall be charged in accordance with the laws now in force or which may hereafter be enacted con- cerning fees and salaries, and according to the class to which the county belongs. Such clerk shall keep full, true and cor- rect accounts of all fees collected by him and report the same in accordance with said laws, for the keeping of which accounts no fees shall be allowed such clerk, and the same shall be open for inspection by the county board, in accordance with said laws, and all fees in excess of the compensation allowed to such clerk, and necessary clerk hire and other expenses, shall be paid into the county treasury in accordance with said laws concerning fees and salaries.^ 23. Clerk's fees in Cook Coouity. § 22. Clerks of the pro- bate court shall receive such compensation or salary as shall be allowed them by the county board, together with the amount of their necessary clerk hire, stationery, fuel and other ex- penses, in accordance with the provisions of the constitution: Provided, that in the county of Cook the probate clerk shall receive, aside from clerk hire, necessary expenses for fuel and stationery, the sum of three thousand dollars ($3,000) per annum as his only compensation, to be paid out of the fees of his office. 24. Salary of judge. § 23. Probate judges shall be allowed such salary as shall be fixed by their respective county boards, to be paid out of the county treasury. 25. Vacancy— <liow filled. § 24. When a vacancy shall oc- cur in the office of judge of the probate court of any county, the clerk of the court in which the vacancy shall exist shall notify the governor of such vacancy. If the unexpired term of the office made vacant is less than one year, at the time the vacancy occurs, the governor shall fill such vacancy by ap- pointment; but if the unexpired term exceeds one year, the 6— See Chapter ^9, "Fees of Clerks of Probate Courts in Clas- sified Counties." 10 THE LAW OP ESTATES. governor shall issue a writ of election as in other eases of vacancy to be filled by election. 26. When clerk may designate and call any county or pro- bate judge to hold court. § 1. That in case of the death, resignation or inability of the judge of a county or probate court, of any county, the clerk of such court shall designate and call any county or probate judge to hold such county or probate court; and such county or probate judge, when so designated and called, may hold such county or probate court and perform all the duties of the judge thereof until the ap- pointment or election of his successor, or until the disability to act ceases.'^ 27. Repeal of act. §2. The act entitled "An Act to author- ize county judges to perform the duties of judges of probate courts, in certain cases," approved May 23, 1883, is hereby repealed. 28. Emergency. § 3. Whereas, there has been a recent death of a county judge, and a necessity thereby created to authorize a county or probate judge to perform the duties of the office of such deceased judge; therefore an emergency exists and this act shall be in force from and after its passage. 29. Probate judge not to act as attorney, etc. § 1. That it shall be unlawful for any judge of any county or probate court, in this state, to act as attorney or solicitor for or against any widow or heirs or other person or persons interested in the estate of any deceased person, in respect to the estate, real or personal, of such deceased person, when administration on the estate of such deceased person is pending in said court and final settlement thereof has not been made. 30. Penalty. § 2. That any county or probate judge who shall violate the provisions of this act shall be fined not less than fifty dollars nor more than one thousand dollars, and upon conviction of the second offense shall be removed from his office. 7 — As amended by Act approved April 24, 1899, in force July 1, 1899. Laws of 1899, p. 130. THE PROBATE COURT. 11 31. Interchange of county and probate judges. Paragraph 215h, a part of the county court act, Hurd's Statutes, 1901, page 570, applies also to probate court. "That the county and probate judges in the several counties of this state, with like privileges as the judges of the circuit courts of this state, may interchange with each other, hold court for each other, and perform each other's duties, in their own or any other county, when they find it necessary or convenient." 32. Jurisdiction to control testamentary trusts created by original wills. § 1. That original jurisdiction is hereby con- ferred upon probate courts and county courts in counties where no probate courts are now, or may hereafter be established according to law to supervise and control all testamentary trusts created by original wills of deceased persons proved and admitted to probate in such court. The jurisdiction hereby conferred shall include the appointments and removals of trus- tees, the issuing of letters of trusteeship to such trustees, the fixing and approving of their bonds and the settlement of their accounts; and in regard thereto said court shall have and exercise full chancery powers. 33. Practice. § 2. The practice in such matters of testa- mentary trusts in probate or county courts as herein provided shall be as nearly as may be analogous to that now existing in the probate and settlement of testate estates. The court shall have power in a summary manner to require the filing of accounts of testamentary trustees and to enforce all orders in relation thereto by citation or attachment in the same manner as is now provided by law in case of executors and adminis- trators. 34. Power to sell real estate. § 3. The supervision and control of testamentary trusts vested by this act in probate courts and county courts in counties where no probate courts are now, or may hereafter be established according to law, shall extend to and include the power in such courts to order the sale of the real estate to which any testator had claim or 12 THE LAW OF ESTATES. title, or such part thereof as may be necessary, for the payment of legacies or other charges made thereon by the testator, and in cases where the court shall find it necessary or expedient for the complete execution of the will of the testator and the equitable distribution of his estate in accordance therewith, that such real estate or a part thereof be sold. In the exercise of this power such courts shall proceed, as near as may be, in conformity with the procedure established by law for the sale of real estate to pay debts in courts having probate jurisdic- tion. 35. Sales, how made and executed — where executor, etc., dies. § 4. All such sales of real estate shall be made, and con- veyances executed for the same by the executor, administrator with the will annexed, or testamentary trustee applying for such order and shall be valid and effectual against the heirs and devisees of such testator, and all other persons claiming by, through or under him or them. In case of the death of the executor, administrator with the will annexed or testamentary trustee applying for an order of sale before conveyance is made, his successor shall proceed in the premises and make conveyance in the same manner as if he had originally applied for such order, which conveyance shall be good and valid. 36. Clerk's fees. § 5. The clerks of probate and county courts having probate jurisdiction shall be entitled to take fees as are now, or hereafter may be authorized by law for like services in the matter of the estates of deceased persons, but no docket fee shall be charged against any estate so held in trust where the original estate when probated was charged and paid a docket fee as provided by law. 37. Not to be construed to repeal land title act. § 6. Noth- ing in the act contained shall be construed as repealing any of the provisions of an act entitled, "An Act concerning land titles," approved and in force May 1, 1897, nor any of the provisions of an act entitled, "An Act to amend sections seven (7) and eighteen (18) of an act entitled, 'An Act concerning THE PROBATE COURT. , 13 land titles,' approved and in force May 1, 1897," approved May 18, 1903, and in force July 1, 1903. The bill (containing the six sections in question) having re- mained with the Governor for a period of ten days (Sunday excepted) after the adjournment of the General Assembly, and he not having filed it with his objections thereto in the office of the Secretary of State, it becomes a law in like manner as if he had signed it. JAMES A. ROSE, Secretary of State. Note — It appears from the enrolled bill filed in this office that the presiding officer of the Senate did not sign the same, but the records of this office show that said bill, designated as Senate Bill No. 118, passed the Senate March 28, 1905, re- ceiving 30 affirmative votes and 2 negative votes, and that the said bill with House amendments, passed the House of Repre- sentatives May 5, 1905, receiving 113 affirmative votes and 7 negative votes; and the records further show that the Senate concurred in the House amendments May 5, 1905, there being 27 votes in favor of concurring and no negative votes. JAMES A. ROSE, Secretary of State. 38. Note. The case of Lynch v. Hutchinson, 219 111. 193, appealed direct from the probate court of Cook county to the October term of the Supreme court of Illinois, was by that court decided and its opinion handed down in December, 1905. In substance it is held: That the Act of 1905, extending the jurisdiction of probate and county courts having probate juris- diction, and giving such courts full jurisdiction and control of testamentary trusts is not a valid law; the law in question was not passed in compliance with the con- stitutional provisions of this State, that is to say, the President of the Senate and the Speaker of the House of Representatives did not certify the law as required by the constitution, and therefore the act was not properly passed as a law. It is also 14 THE LAW OF ESTATES. held in that case, that every bill which has passed both houses, must be signed by the President of the Senate, and the Speaker of the House, this being mandatory, even though such signa- tures are not conclusive evidence that the bill was properly passed. Note. In those States where the enrolled bill, duly authen- ticated, is held to be conclusive evidence of its passage, the provision has uniformly been held to be mandatory; while in those States, where the journal of the respective hoiLses may be looked into to determine whether the bill was passed in com- pliance with the constitutional provisions, there exists a con- flict of authority. s 8— 26 Am. & Eng. Ency. of Law, State, 45 Ohio St. 263; Cooley's 2d ed., p. 545. See Keiswettor v. Const. Lim., 2d ed., p. 152. CHAPTER II JURISDICTION OF PROBATE COURTS Sec, 39. Jurisdiction of Probate and County courts having pro- bate jurisdiction. 40. Jurisdiction defined. 41. Klokke v. Dodge. 42. Meserve v. Delany. 43. Jurisdiction of probate courts are as conclusive as that of any court of common law jurisdiction. 44. The Illinois decisions recog- nize the jurisdiction of Sec. such courts extensively in law and equity. 45. Chancery courts have estab- lished almost a universal rule of jurisdiction in pro- bate courts. 46. Testamentary trusts and trus- tees. 47. The Federal courts take juris- diction in matter of estates when? 48. Yonley v. Lavender, 49. Byers v. McAuley. Sec. 39. Jurisdiction of probate and county courts having probate jurisdiction. The jurisdiction of probate courts is fixed by section 20 of article 6 of the constitution of 1870, and by the Act to establish probate courts, approved April 27, 1877, conferring jurisdiction in the language of the constitu- tion, viz. : Said courts, when established, shall have original jurisdiction of all probate matters, the settlement of estates of deceased persons, the appointment of guardians and conserva- tors, and settlement of their accounts.^ 40. Jurisdiction defined. Bouvier's Law Dictionary defines "jurisdiction" as the authority by which judicial officers take cognizance of and decide cases; power to hear and determine a case; the right of a judge to pronounce a sentence of the law in a case or issue before him, acquired through the process of law. 1— Chicago Title & Trust Co, v. Brown, 183 111, 42. of this work. 15 See chapter I 16 THE LAW OF ESTATES. 41. In Klokke v. Dodge,^ it is said: It is appar- ent, then, that county courts in all the counties of the state have, and must have under the constitution, the same powers and jurisdiction, whether probate courts are established in some of them or not; and hence constitute a "class of courts," within the meaning of that instrument, eoncerning which all laws must be general, and of uniform operation. 42. In the case of Meserve Exr. v. Delany,^ it is said: This case comes directly to this court because the sole question discussed is the constitutionality of that portion of the statute of April 27, 1877, pursuant to which the probate records and files of the county court of Cook county was transferred to the probate court of that county. This court held in Knickerbocker v. The People,'^ that so much of the act above referred to as created the probate court was constitu- tional, and this was subsequently reiterated in Klokke v. Dodge.^ And a majority of the court are still of the opinion announced in Klokke v. Dodge, supra, that the creation of the probate court divested the county court of all probate jurisdiction. 43. Jurisdiction of Probate Courts are as conclusive as that of any court of common law jurisdiction. When acting under the power conferred upon them, such courts are entitled to the same presumptions in their favor when collaterally assailed as other courts. In most of the states by express statutes, or by a long line of judicial decisions the orders and decrees of probate courts, when acting within their powers, are as bind- ing as that of other courts and will generally be upheld.® 44. The Illinois decisions recognize the jurisdiction of such courts. As clothed with jurisdiction in all matters of pro- 2—103 111. 129. V. People, 66 III. 178; Bostwick v. 3—105 111. 55. Skinner, SO 111. 147; Johnson v. 4—102 111. 218. Mellhorsen, 105 111. App. 368; De- 5—103 111. 125. milly v. Grosrenand, 201 111. 273; 6— Wright V. Wallbaum, 39 111. Clewes v. Fox, 25 Colo. 39; Frencb 554; Duffin v. Abbott, 48 111. 17; v. Woodruff, 25 Ck)lo. 349. Hobson V. Ewan, 62 111. 146; House JURISDICTION OF PROBATE COURTS. 17 bate, the settlement of estates of deceased persons, appoint- ment of guardians and conservators and settlements of their accounts. It is confined to the exercise of legal power, but may also exercise equitable power in the adjudication of all matters pertaining to the settlement of estates. And it is only in extraordinary cases that a court of equity assumes jurisdic- tion in the settlement of an estate and supersedes the probate court, which has ample power to adjust and settle equitable rights and claims of parties as far as it has authority under the statute and decisions of the courts of last resort.'^ And it appears to be settled in Colorado, that where it be- comes necessary in the settlement and distribution of the estate of a testator the court of probate has power to construe wills that may involve the settlement and distribution of an estate under administration.^ 45. Chancery Courts have established almost a universal rule of jurisdiction in Probate Courts. It has been repeatedly held, that a court of chancery will not exercise jurisdiction at the instance of the personal representatives, creditors, lega- tees, or distributees, unless some special circumstances are shown, why the probate court cannot afford adequate remedy in the premises; and this rule is adhered to more particularly where the estate is already in process of settlement in the probate court. But it appears the exception to this established rule is, that gross mismanagement by the executor, both as to real and personal property, and a breach of trust as to the sale of the real estate, and the fraud and collusion of the executor 7— Wadsworth v. Connell, 104 238; Ames v. Ames, 148 111. 321; 111. 369; Doggett v. Dill, 108 111. Duval v. Duval, 153 111. 49; Good- 560; Miller v. Harris, 119 111. 185; man v, Kopperl, 169 III. 136; Et- McCall V. Lee, 120 111. 261; Wolf, ling v. First National Bank, 173 Exr., V. Beaird et al. Exrs., 123 111. 368. 111. 585; Estate of Corrington. 124 8— People v. County Court, 3 111. 363; Wilson v. Leland, 128 111. Colo. Ct. of App. 425. 304; Shepherd v. Speer, 140 111. 18 THE LAW OF ESTATES. or executrix, are grounds for equitable interference by a court of chancery.^ 46. Testamentary trusts and trustees. Should the Act of July 1, 1905, extending jurisdiction of probate and county courts having probate jurisdiction, be held constitutional, then such courts will have original jurisdiction to super- vise and control all testamentary trusts, created by original wills of deceased persons proved and admitted to probate in such courts; with power to appoint and remove testa- mentary trustees; issue letters of trusteeship and fix and approve of the bonds of such trustees, and settle their accounts. Also power to sell real estate, to which any tes- tator or testatrix had claim or title, or such part thereof as may be necessary for the payment of legacies, or charges made thereon by the testator or testatrix ; general power being conferred by said Act of July 1, 1905, to fully administer such trust estates.^ ^ 47. The Federal Cotirts take jurisdiction in matters of estates when? The right to sue the administrator of an estate in the federal court where the requisite diversity of citizenship exists is indisputable.^^ The fact that the complainants have likewise proven their claims in the state court constitutes no bar to the proceedings in the federal court. These courts are foreign to each other.^^ The mere pending of a prior suit in a. state court, though it be between the same parties, and upon the identical cause of action, will not prevent the Federal Court from taking jurisdiction.^^ 9— Etling V. First National 11— Payne v. Hook, 7 Wall. 425; Bank, 173 111. 368; Goodman v. Yonley v. Lavender, 21 Wall. 276; Kopperl, 169 111. 136; Duval v. Byers v. McAuley. 149 U. S. 608. Duval, 153 111. 53; Ames v. Ames, 12 — Louisville T. Co. v. Cincin- 148 111. 321 ; Harding v. Shephard, nati, 22 C. C. A. 359, and cases 107 111. 273; McKinnon v. Hall, 10 cited. Colo. Ct. of App. 291. 13— Stanton v. Embry, 93 U. S. 10 — Lynch v. Hutchinson, ante, 548; Gordon v. Gilfoil, 98 U. S. 38. 168. JURISDICTION OF PROBATE COURTS. 19 48. In Yonley v. Lavender, ^'^ it is held: That a non- resident creditor may obtain a judgment in a federal court, against a resident executor or administrator, and come in on the estate according to the law of the state for such payment as that law, marshalling the rights of creditors' awards to debtors of his class. 49. In Byers v. McAuley,^^ the following rule is laid down: A citizen of another state may proceed in the federal court to establish a debt against the estate, but the debt thus established must take its place and share in the estate as administered by the probate court; it cannot be enforced by direct proceedings against the estate itself. This court has the right and it is its duty to determine the character and extent of the complainant's claim against the estate, and the class to which the complainants belong; the federal court does not and cannot draw to itself the administration of the estate. 14—21 Wall. 276. 15—149 U. S. 608. CHAPTER III DESCENT AND DISTRIBUTION Sec. 50. Descent and distribution. 51. The Statute of Descent as first passed. 52. Rules of descent. 53. Lineal consanguinity, lineal heirs. 54. Will and testament may modi- fy and completely change course of descent. 55. The early statutes of descent. 56. Application of clauses 1, 3, 6, Sec. 1, of Descent Act. 57. Application of Sec. 2 of that act. 58. Illegitimates, Sec. 2 of Statute of Descent. 59. Child legitimated. 60. Robinson v. Ruprecht. 61. Lewis V. King. 62. Butler v. Butler. 63. Zachman v. Zachman. Sec. 64. Advancements. 65. Hotchpotch. 66. Advancements must be evi- denced by writing. 67. Posthumous child. 68. Child born after will, effect. Marriage effect. 69. Death of devisee being child, etc., before testator. 70. Frail v. Carstalrs. 71. Distribution of undivided estates. 72. Sutton V. Read. 73. Where there is a surviving widow or husband but no issue. 74. Where intestate leaves a child or children or their descen- dants. 75. Miscellaneous. Sec. 50. Descent and distribution. When an individual dies, his or her real and personal estate "descends" and is "distributed" as provided by statute law, to and among those persons whom that law designates as the heirs of the deceased. Strictly speaking, real estate only "descends" while the per- sonal estate is distributed. In this work we omit a discussion of the common law, pertaining to the administration of estates by ecclesiastical authorities, to whom, under the early com- mon law, such was almost entirely entrusted. The very able and extensive works of Blackstone and Kent each contain a full and complete history of such courts administering estates. The modem text book writers, treating the subject of estates 20 DESCENT AND DISTRIBUTION. 21 and their administration, give but little space and time in dis- cussing the history and administration of estates by ecclesias- tical courts. These courts at one time all powerful in the administration of estates, have given way in this country to a better and more equitable modern system, to be found in the legislative enactments of all the states of the United States. We must therefore look to the legislative enactments of the several states comprising the Union, to ascertain the law relat- ing to the administration, settlement and distribution of es- tates. It is under the statute laws of the different states, the heirs of deceased persons are entitled to the personal estate of deceased persons. It is now universally held that the distribu- tion of estates relating to personal property is governed by the lex domicilii — real estate descending and being governed by the lex rei sitae. The doctrine laid down by Judge Story in his workj "Conflict of Laws," section 481, has long been adopted and applied by the courts of Illinois, viz. : ' ' That the succession to personal property is governed by the laws of the actual domicile of the intestate at the time of his death, no matter what was the country of his birth or his former domicile or the actual situs of the property at the time of his death. "1 Real estate descending or devised is governed by the law of the place or state where the real estate is situated. So upon the death of the householder, the homestead estate devolves upon the surviving husband or wife for life and upon the chil- dren of the householder during the minority of the youngest child, and the heirs-at-law take a reversionary interest only, ex- pectant upon the termination of the estate of homestead.^ 1— Russell V. Madden, 95 111. 485. Vol. 5, pp. 113 to 116, and cases 2— Robertson v. Tipple, 209 111. cited; Kurd's R. S. of 111. 1905, 38. Sees. 1, 2, 3, 5, 6, 14, Chapt. 30, same sections and chapter, pp. 463, "Conveyance" Act, Starr & Curtis 464, 466; McConnell v. Smith, 23 Annotated Stat, of 111., with Jones 111. 617; Murfitt v. Jessop, 94 111. & Addington's Supplements there- 158; Starr & Curtis Stat. Vol. 2, to. Vol. 1, pp. 910 to 918, inclusive, p. 1874; Sec. 4, Chapt. 52, "Exemp- with cases cited, making applica- tions;" Robertson v. Tippie, supra, tion of the sections noted. Vol. 4, 40. pp. 252 to 255, and cases cited. 22 THE LAW OF ESTATES. 51. The statute of descent was first passed by the legisla- ture soon after Illinois became a state, the act being approved March 29, 1819. (Session Laws of 1819.) The first act re- mained in force until January 23, 1829; in the meantime, the statute was construed by the Supreme Court, which adopted the rule of the civil law in ascertaining who are "next of kin." After tliis opinion, the legislature in 1829 expressly adopted the civil law rule of computation, and that rule has ever since been the rule of this state for ascertaining the "next of kin. "3 52. Descent. Section 1 of chapter 39, entitled "Descent'* was approved April 9, 1872, and put in force July 1, 1872; was amended May 25, 1877, and in force July 1, 1877; that section as it stands today is as follows : Rules of descent. That estates, both real and personal, of residents and non-resident proprietors in this state dying in- testate, or whose estate or any part thereof shall be deemed and taken as intestate estate, after all just debts and claims against such estates are fully paid, shall descend to and be distributed in manner following, to-wit: First — To his or her children and their descendants, in equal parts; the descendants of the deceased child or grandchild taking the share of their deceased parents in equal parts among them. Second — When there is no child of the intestate, nor de- scendant of such child, and no widow or surviving husband, then to the parents, brothers and sisters of the deceased and their descendants, in equal parts among them, allowing to each of the parents, if living, a child's part, or to the survivor of them if one be dead, a double portion; and if there is no 3— Laws of 1829, p. 206; 2, Kent's thereto. Vol. 2, pp. 1425, 1426, and Com., 339; Hay's Adm'r v. Thorn- cases cited under "General Notes;" as, 1 111. (Breese) 180; Starr & Vol. 4, p. 437, and cases cited un- Curtis Annotated Stat. of. 111., with der "General Notes;" Vol. 5, p. Jones & Addinston's Supplements 176, and cases under "General Notes." DESCENT AND DISTRIBUTION. 23 parent living, then to the brothers and sisters of the intestate, and their descendants. Third — When there is a widow or surviving husband, and no child or children, or descendants of a child or children of the intestate, then (after the payment of all just debts) one- half of the real estate and the whole of the personal estate shall descend to such widow or surviving husband ^s an abso- lute estate forever, and the other half of the real estate shall descend as in other cases, where there is no child or children or descendants of a child or children. Fourth — When there is a widow or a surviving husband, and also a child or children or descendants of such child or children of the intestate, the widow or surviving husband shall receive, as his or her absolute personal estate, one-third of all the personal estate of the intestate. Fifth — If there is no child of the intestate or descendant of such child, and no parent, brother or sister or descendant of such parent, brother or sister, and no widow or surviving hus- band, then such estate shall descend in equal parts to the next of kin to the intestate in equal degrees (computing by the rules of the civil law), and there shall be no representation among collaterals, except with the descendants of brothers and sisters of the intestate; and in no case shall there be any distinction between the kindred of the whole and the half blood. Sixth — If any intestate leaves a widow or surviving husband and no kindred, his or her estate shall descend to such widow or surviving husband. Seventh — If the intestate leaves no kindred, and no widow or husband, his or her estate shall escheat to and vest in the county in which said real or personal estate, or the greater por- tion thereof is situated.'* 4 — Starr & Curtis' Annotated in question is applied and its dif- Statutes of Illinois, with Jones & ferent clauses; Vol. 4, p. 437, and Addington's Supplements thereto, cases cited; Kurd's R. S. of 111., Vol. 2, pp. 1426 to 1429 inclusive, 1905, same section and chapter, pp. and cases cited where the section 763, 764, and cases cited. 24 THE LAW OF ESTATES. 53. Lineal consanguinity — lineal heirs. Lineal consan- guinity is that relation which exists among persons where one is descended from the other, as between the son and a father or the grandfather, and so upward in the ascending line, and between the father and the son or the grandson, and so down- ward in a direct descending line.^ 54. Will and testament may modify or completely change course of descent. Prior to his or her death, the owner of any real or personal estate may, by last will and testament, prop- erly executed, modify or completely change the course of descent, so that the whole or a part of his or her estate may become the property of total strangers. The power so to do may be enlarged or curtailed by the legislature. And, while the owner of real and personal property by his or her will have that right and power, they must not contravene any well recog- nized and admitted principle of public policy, or rule of clear right.^ 55. The early statute of descent provided, when there was a surviving widow, and no child or children or descendants of a child or children, the widow took one-half of the real estate and the whole of the personal estate, as her own exclusive estate forever. But while the widow was provided for in case of the death of her husband intestate under the early statute, there was no corresponding provision for the husband in ease of the death of his wife intestate, leaving no child or children or their descendants. The husband was left to his right of curtsy in his deceased wife's real estate as it stood at common law. This condition of the law remained as to the rights of 5 — Bouvier's Law Die, title of 111., with Jones & Addington's "Consanguinity;" Willis Coal & Supplements thereto. Vol. 3, pp. Mining Co. v. Grizzell, 198 111. 317. 4022 to 4026 inclusive, with cases 6 — Emmert v. Hayes, 89 111. 11; cited under "Rights and power of Freeman v. Easly, 117 111. 117; disposition of property by Will," Clausennious v. Clausennious, 179 Vol. 4, pp. 1283, 1284, and cases 111. 545. Sec. 1, Chapt. 148 "Wills" cited; Hurd's R. S. of 111. 1905, Starr & Curtis' Annotated Statutes same section and chapter, p. 2050. DESCENT AND DISTRIBUTION. 25 the surviving husband in such case, as to the real estate of his deceased wife until 1843, v^hen the legislature on March 6 of that year provided, that when any feme covert shall die intes- tate, leaving no child or children, or descendants of a child or children, then one-half of the real estate of the decedent shall descend and go to the husband as his exclusive estate forever. Revised Statutes, 1845, 546, section 47, embodying the laws of 1829 and 1843. But the word "dower" used in the act of 1843, was subsequently explained, as including one-third of the personal property in intestate estates.'^ Under the law of 1872 and prior acts, when there are no children or descendants thereof, the surviving husband or wife, takes one-half of the real estate and the whole of the personal estate of the deceased husband or wife dying intestate, subject to debts. 56. Application of Clauses 1, 3, 6, section 1, of the act of "Descent" will be found in numerous cases.^ In Christy v. Marmo7i,^ it is held, that an ante-nuptial contract which bars widow's dower, does not defeat her inheritance as heir, unless such contract expressly so provides.!^ 57. Application of section 2 of the act, illegitimates when heirs. A bastard takes nothing by descent, except as provided by statute.ii In the latter case the court says: The statute as we understand it confers upon illegitimates and their lawful issue, as respects the mother and any maternal ancestor, and any per- son from whom the mother might have inherited, if living, the right to inherit from such. The lawful issue of an illegitimate person shall represent such, and take, by descent, any estate which the parent would have taken if living. There is nothing in the statute that will allow an illegitimate to inherit from the father of such person; but the object of the framers of the 7— Statute 1845, p. 545, Sec. 46. 9—163 111. 225. 8— Whitson v. Grasvner, 170 111. 10— See Kroell v. Kroell, 219 111. 276; Scheible v. Rink, 195 111. 638; 105. Laurence v. Balch, 195 111. 628; 11— Stoltz v. Doering, 112 111. Lockwood V. Moffett, 177 111. 58. 234; Bales v. Elder, 118 111. 436. 26 THE LAW OF ESTATES. statute seems to have been, to remove the common law disability of inheritance through the maternal line, and, in that regard, place such persons upon the same footing as legitimate persons. Two classes of persons are provided for under the statute of descent in sections 1 and 2 ; where there are no persons to claim •under section 2, as would ordinarily be the case where a man dies intestate, leaving no children, descendants of children, or widow, then the entire estate would pass and be distributed under section 1; but in case there were persons who were heirs under section 2, then the estate would descend and have to be distributed under both sections.i^ In Eundall v. Ham,^^ it is said: Clause 2 of section 2 of the Stat- ute of Descent providing that the estate, real and personal, of an illegitimate person shall descend to and vest in the widow or surviving husband and children, confers no right whatever upon collaterals. Children of the mother of an illegitimate can claim under clause 4 of section 2 of the Statute of Descent only where there is no widow or surviving husband, and if there is a widow it is immaterial, so far as the right of such children to inherit is concerned, that she has estopped herself from asserting her right, as sole heir, under the statute. 58. Illegitimates. Section 2 of the Statute of Descent is as follows : An illegitimate child shall be heir of its mother and any maternal ancestor, and of any person from whom its mother might have inherited, if living; and the lawful issue of an illegitimate person shall represent such person, and take, by descent, any estate which the parent would have taken, if living. Second — The estate, real and personal, of an illegitimate per- son, shall descend to and vest in the widow or surviving hus- band and children, as the estate of other persons in like cases. Third — In case of the death of an illegitimate intestate leav- 12— Jenkins v. Deane, 121 111. Trust Co. v. R. Co., 91 111. App. 217; Elder v. Bales. 127 111. 425; 336; Miller v. Williams, 66 111. 9L 13—183 111. 486. DESCENT AND DISTRIBUTION. 27 ing no child or descendant of a child, the whole estate, per- sonal and real, shall descend to and absolutely vest in the widow or surviving husband. Fourth — When there is no widow or surviving husband, and no child or descendants of a child, the estate of such person shall descend to and vest in the mother and her chil- dren, and their descendants — one-half to the mother, and the other half to be equally divided between her children and their descendants, the descendants of a child taking the share of their deceased parent or ancestor. Fifth — In case there is no heir as above provided, the estate of such person shall descend to and vest in the next of kin to the mother of such intestate, according to the rule of the civil law. Sixth — When there are no heirs or kindred, the estate of such person shall escheat to the state, and not otherwise. Hurd Statutes. 59. Child legitimated — intermarriage of parents. Section 3 of the Statute of Descent is as follows : An illegitimate child, whose parents have intermarried, and whose father has ac- knowledged him or her as his child, shall be considered legiti- mate.i* 60. In Robinson v. Buprecht,^^ it is said: Section 3 enables parents to intermarry where they may legally do so, and acknowledge their offspring born prior to the legal cele- bration of their union; we do not see the force of the reason- ing, that would restrict the meaning of the section, so as to exclude from its operation- parents, one or the other of whom has violated his or her marriage obligations in the procreation of the child. The child of such parents is not less innocent or unoffending than the child of parents who were married at the time of the copulation; and the ground upon which the insistence is based, ''that the child should be punished for the sins of the parents," shocks every sense of justice and right. 14— R. S. 1845, p. 547, Sec. 52. 15—191 111. 424. 28 THE LAW OP ESTATES. The degree of moral or criminal delinquency of the parents does not enter into consideration in construing the statute. The court in that case holding, that a common law marriage is established in this state, where at the time of the celebration of the supposed marriage, the man knew that he had a legal wife living, and the woman had a husband living whom she in good faith supposed to be dead; the parties continuing to cohabit as husband and wife, and publicly conducting and announcing themselves as such, acknowledging their offspring as their children, after receiving knowledge that the man's legal wife was dead and after the woman's legal husband had died; in which case the children are rendered legitimate, for it was not the legislative intent to exclude from the benefits of sections 2 and 3 any illegitimate person legitimized. 61. In Lewis v. King,^^ the deceased, who died seized of certain lands in controversy, was a negro, who, for a num- ber of years immediately prior to the late civil war, was a slave. His marriage was consummated under the statute of Kentucky relating to the marriage of negroes and mulattoes, by persons living in that state as husband and wife while in slavery, which legitimized previously born issue. He lived for many years before and after the war, at a point known as Hillman's Iron Works located on the Cumberland river in Trigg county, Kentucky. It was held that under the Kentucky statutes his marriage was made lawful ; that the children born to him as the issue of such marriage were the legitimate chil- dren of the marriage of the deceased to one Betsy Baker. As a marriage between persons in a state of slavery is rendered valid by their ratification of the same after emancipation, and children born thereafter are legitimate, the title to the land in question, upon the death of Edward Baker, passed to his surviving daughter, and to the children of his deceased daugh- ter. 62. In Butler v. Butler,^'' the court holds: that a marriage 16—180 111. 263. 17—161 111. 451. DESCENT AND DISTRIBUTION. 29 between persons in a state of slavery is not binding upon the parties to it, if repudiated upon emancipation; and that ratifi- cation of a marriage between slaves by cohabitation of the par- ties after emancipation renders such marriage valid, and this doctrine is affirmed again in Middleton v. Middleton}^ 63. In Zachman v. Zachman,^^ the court held: A minor child reared in the family of a lawfully married hus- band and wife, who are living together as husband and wife, and is treated and recognized as their lawful offspring, is prima facie to be regarded as the child of the husband, and the burden of disproving such parentage is cast upon those de- nying it; and this notwithstanding, the parents had been mar- ried but fifteen days at the time of the birth of such child; and notwithstanding further, that at the time of its concep- tion its mother was the lawful wife of another man, from whom she was divorced only twenty days before such mar- riage. 64. Advancements. Section 4 of the Statute of "Descent" is as follows: ''Any real or personal estate given by an in- testate in his life-time as an advancement to any child or lineal descendant, shall be considered as part of the intestate's estate, so far as it regards the divisions and distributions thereof among his issue, and shall be taken by such child or other descendant towards his share of the intestate's estate; but he shall not be required to refund any part thereof, al- though it exceeds his share." In the following case it is held that advancements are not required to be returned in kind; but the value of such after being estimated is deducted from the child's share who re- ceived such benefit ; and such heir may elect to retain the prop- erty advanced and relinquish claim to share in distribution; but infants have not capacity to elect in such case, therefore equity will direct election in their interest.^*^ It is 18—221 111. 623. 20— Grattan v. Grattan, 18 111. 19—201 111. 38S. 167. 30 THE LAW OP ESTATES. held where a conveyance of land by a father to a son, was made in consideration of a son's relinquishing, is no advance- ment; the case turning on the fact that the son was a minor and that any receipt given indicating the deed was made as an advancement was not binding as the minor and those act- ing for him could not make a valid and binding agree- ment. 21 In Galhraith v. McLain,"^^ it is held, the purchase of land by a parent in name of child, or by husband in name of wife is presumed 'prima facie to be an advancement, not a trust; but the intention of the one making the advancement may be established by evidence in such case ; and to the same effect.23 In the following cases it is held, an advancement is a gift from parent to child or heir ; and if the child or heir, to whom the gift or advancement was made, dies in the life- time of the parent making the gift or advancement, the chil- dren of the son or heir who had received the gift, were barred from any share in their grandfather's estate, of course to the extent of the advancement, if it appears that the advancement made was not in full of the heir's share of the deceased parent's estate.24 65. Hotchpotch. Under the statute of Descent of this State passed in 1845, provision was made for bringing real or personal estate into hotchpotch; a common law doctrine or principle applied in the State up to the time of passing the. statute of 1872, we now have in force. The term is defined by Webster as "a mingled mass"; a ''mixture of ingredients." In Law Blackstone defines the term, a mixing of lands. Thus land given in frank marriage to one daughter, shall, after the death of the ancestor, be blended with the lands descending to her and to her sisters from the same ancestor, and then divided in equal portions to all the daughters. In Bishop 21 — Bishop V. Davenport, 58 111. 24 — Simpson v. Simpson, 114 111. 105. 603; Wallace v. Reddick, 119 111. 22—81 111. 376. 151; Comer v. Comer, 119 111. 170; 23— Maxwell v. Maxwell, 109 111. Scott v. Scott, 191 111. 630. 376; Cline v. Jones, 111 111. 563. DESCENT AND DISTRIBUTION. 31 V. Davenport,^^ the doctrine was applied, the court hold- ing: the statute of 1845, made provision for bringing real or personal estates into hotchpotch, and gave the party advanced, if of age, the right to elect whether he would do so or not; if he refused to bring his advancement into hotchpotch, he was precluded from any share in the intestate's estate, on the presumption that he is sufficiently provided for or he would not refuse so to do. 66. Advancements must be evidenced by writing. This is required, in all cases under section 7 of the act of "Descent." In the following cases the statute is applied. It being held, however clearly it may appear it was so intended, if not ex- pressed in writing will be no advancement.^^ And as in many cases where the testator in his will stated, that on former occa- sions, he gave various pieces of property to his children, it was held, not an expression of a gift by way of advancement. ^^ 67. Posthumous child. Section 9 of the statute of "De- scent" is as follows: "A posthumous child of an intestate shall receive its just proportion of its ancestor's estate, in all respects as if it had been born in the life-time of the father." Such child takes directly from parent as though in being at parent's death. The section also applies to land in the State of Illinois, although a will is probated out of the State. ^^ The courts of this State have placed the rights of such children upon precisely the same footing with the rights of children born in the life-time of the intestate. They cannot be divested of title unless made a party to proceedings at law or 25—58 111. 105. 1431, 1432; Vol. 4, p. 438; Vol. 5, 26 — Cline v. Jones, 111 111. p. 176, and cases cited. 571; Simpson v. Simpson, 114 111. 27 — Wilkinson v. Thomas, 128 605; Long v. Long, 118 111. 638; 111. 363; Bartmess v. Fuller, 170 Wilkinson v. Thomas, 128 111. 368; 111. 197; Gray v. Newton, 201 111. Kershaw v. Kershaw, 102 111. 307; 181; May v. May, 36 111. App. 77; Marshall v. Coleman, 187 111. 556; Haines v. Christie, 28 Colo. 502. Starr & Curtis Annotated Statutes 28— McConnell v. Smith, 23 111. of 111., with Jones & Addington's 611 ; Kingsbury v. Burnside, 58 111. Supplements thereto. Vol. 2, pp. 310. 32 THE LAW OF ESTATES. equity.23 The form of action whether in chancery, at law or under the statute, does not make or change the rights of such posthumous child.30 68. Child born after will — Effect of marriage. Section 10 of the Statute of "Descent" is as follows: "If, after making a last will and testament, a child shall be born to any testator, and no provision be made in such will for such child, the will shall not on that account be revoked ; but unless it shall ap- pear by such will that it was the intention of the testator to dis- inherit such child, the devises and legacies by such will granted and given, shall be abated in equal proportions to raise a por- tion for such child equal to that which such child would have been entitled to receive out of the estate of such testator if he had died intestate, and a marriage shall be deemed a revo- cation of a prior will." Devises and legacies are to be reduced under this section pro rata to raise same portion as if parent had died intestate.^i In Osbwn v. Jefferson National Bank^^ it was held : A mother may provide for such posthumous child or children in case they should survive her; and should she make a will with proper provision for such child, it does not abate under the statute. In Flannigan v. Howard,^^ it is held: That the act of 1867, providing for the adoption of children was in force, at the time the act of July 1, 1872, of the statute in regard to the descent of property took effect, that after- wards the act in relation to the adoption of children was re- vised by the act in force July 1, 1874, constituting Chapter 4, of the Revised Statutes ; section 5 of that act being as follows : "A child so adopted shall be deemed, for the purpose of in- heritance by such child, and his descendants and husband or 29— Smith v. Connell, 17 111. of Illinois, with Jones & Adding- 135; Botsford v. O'Connor, 57 111. ton's Supplements thereto. Vol. 2, 72; Ward v. Ward, 120 111. Ill; p. 1432, and cases cited. Osborn v. Jefferson Nat'l Bk.. 118 31— Ward v. Ward, 120 111. 112; 111. 130; Kingsbury v. Buettner, Bank v. White, 159 111. 140; Hun- 134 U. S. 650. dall v. Ham, 172 111. 82. 30— Ward v. Ward, 120 111. Ill; 32—116 111. 130. Starr & Curtis Annotated Statutes 33—200 111. 400. DESCENT AND DISTRIBUTION. 33 wife, and other legal consequences and incidents of the nat- ural relation of parents and children, the child of the parents by adoption, the same as if he had been born to them in lawful wedlock, except that he shall not be capable of taking prop- erty expressly limited to the body or bodies of the parents by adoption, nor property from the lineal or collateral kindred of such parents by right of representation." By accepted definitions a child is the immediate progeny of human pa- rents, and in its natural meaning the word a,pplies to offspring born to such parents. By the statute, however, the relation of parent and child is recognized and declared as legally ex- isting between persons not so related by nature. The Statute of Descent does not, in any case, mention this legal relation of an adopted child and the adopting parent, but the right of the adopted child is fixed by the act providing for adoption, which creates, in law, the relation of parent and child. The purpose of section 10 of the act in regard to descent is to give to a child who shall come into existence after the making of a will, and who would inherit but for the will, the same rights it would have if the estate were intestate, where no provision is made in the will for such child and no contrary intention is expressed in the will. An adopted child becomes the lawful child of the adopting parents for all purposes of inheritance, and is in the eyes of the law as much the child of such parent as though it had been his own child.^* 69. Death of devisee being child, etc., before testator. Sec- tion 11 of the Statute of "Descent" is as follows: ''When- ever a devisee or legatee in any last will and testament, being a child or grandchild of the testator, shall die before such testator, and no provision shall be made for such contingency, the issue, if any there be, of such devisee or legatee, shall take the estate devised or bequeathed as the devisee or legatee 34— Keegan v. Geraghty, 101 111. of 111., with Jones & Adding- 26; Sayles v. Christie, 187 111. 420; ton's Supplements thereto. Vol. 2, Starr & Curtis Annotated Statutes p. 1433; Vol. 4, p. 438; Vol. 5, p. 177, and cases cited. 3 34 THE LAW OF ESTATES. would have done had he survived the testator, and if there be no such issue at the time of the death of such testator, the estate disposed of by such devise or legacy shall be considered and treated in all respects as intestate estate. "^^ 70. In Frail v. Carstairs,^^ applying and construing this section of the statute, it is held: Whenever a dev- isee, being a child or grandchild of the testator, dies without issue, before the testator, and the will makes no provision for Buch contingency, the estate so devised is to be treated as in- testate property, and would under statute go to heirs of such child or grandchild. See also cases cited in that opinion. 71. Distribution of undivided estate. Section 12 of the Statute of "Descent" is as follows: **A11 such estate, both real and personal, as is not devised or bequeathed in the last will and testament of any person, shall be distributed in the same manner as the estate of an intestate ; but in all such cases the executor or executors, administrator or administrators, with the will annexed, shall have the preference in administer- ing on the same. "37 72. In Sutton v. Read,^^ the record shows, the will in question nowhere attempted to dispose of the fee in the realty; it was not devised to any one. The court holding, in such case the provisions of section 12 of the Statutes of De- scent must control and which provides that all such estate, both real and personal, as is not devised or bequeathed in the last will and testament of any person, shall be distributed in the same manner as the estate of an intestate. In Benson v. Moore,^^ the deceased left a mother and a surviving husband, but no issue; the mother and husband each inherited one half of the real estate. 73. Where there is a surviving widow or husbajid but no issue. Prior to the act of the Legislature of this State passed 35— R. S. 1845, p. 539, Sec. 14. 38—176 111. 69. 36—187 111. 310. 39—104 111. 408. See Marvin v. 37— R. S. 1845, p. 545, Sec. 42. Collins, 98 111. 517. DESCENT AND DISTRIBUTION. 35 in 1829, what was termed or called "the widow's third" of the personal property, in all cases went to the surviving widow; by that act where there was no child or children or descend- ants of a child or children, the widow received one half of the real estate and the whole of the personal estate absolutely; subject of course to the payment of all just debts and cost of administration. The surviving husband, where there was no child or children or their descendants, prior to the act of the Legislature passed in 1843, as to the real estate of his intestate wife had nothing but his estate of curtsy a right recognized and growing out of the common law. Under the act of 1843 (Statutes of 1845, p. 546, Sec. 47), the surviving husband, in case there was no child or children or their descendants, was given one half of the real estate of his wife in fee so dying in- testate, without issue. Later in 1872, the Statute of Descent was revised and passed (Chapter entitled "Descent," Sec. 1, Clause 3), under which the husband was given the whole of the personal estate absolutely, burdened with just debts and cost of administration, in case the wife died intestate and left no child or children or their descendants. This act was fol- lowed by an act relating to married women's rights revised and passed by the Legislature in 1874. (Statutes 1874, Chapter 68, entitled "Husband and Wife.")4o And, as the result of this act and the act relating to descent, the husband in case of the wife 's death intestate as aforesaid, leaving no issue, was placed in precisely the same relation under the law as the surviving widow formerly held ; at the present time, therefore, the inter- est of the widow or surviving husband is that of an heir, under the statutes of this State, in the estate of the deceased husband or wife dying intestate, in both the real and personal property in the absence of issue or their descendants; the other half of the real estate descending as provided by the Statutes of De- 40— Starr & Curtis Annotated 2, pp. 2117 to 2136 inclusive; Vol, Statutes of 111., with Jones & Ad- 4, pp. 673 to 675 inclusive; Vol. 5, dington's Supplements thereto. Vol. pp. 286, 287. 36 THE LAW OF ESTATES. scent to the next of kin of either the paternal or maternal line of consanguinity. 74. Where intestate leaves a child or children or their de- scendants. Under the early statutes of this state, when the husband died intestate, and left a surviving- widow and also a child or children or descendants of such child or children, the widow received as her absolute estate, one third of the per- sonal estate after the payment of just debts and cost of admin- istration. If the wife died intestate, and left a surviving hus- band and also a child or children or their descendants, the child or children or their descendants succeeded to the per- sonal estate, after payment of just debts and cost of admin- istration. But as the result of various acts of the Legislature relating to the rights of married women and their dominion, control and ownership of their separate property resulting in the revision of all such laws, the act of 1872, relating to "De- scent" and the act of 1874, relating to "husband and wife," and their separate properties, noted and referred to in the preceding section, one third of the intestate wife's personal estate was by statute given to the husband; so, that since the acts in question and now, both husband and wife in this re- spect stand equal before the law. The real estate under the early statutes descended to such child or children or their de- scendants, burdened with or subject to the surviving widow's, or the surviving husband's estate of curtsy under the common law. On March 4, 1874, a change was made in the status of the surviving husband, on that date the Dower Act was revised and passed by the Legislature ; and, under that act going into force July 1, 1874, the estate of curtsy theretofore recognized in the surviving husband was abolished; both the surviving husband and wife being endowed by that statute with a one third part of "all the lands whereof the deceased husband or wife was seized of an estate of inheritance, at any time during the marriage, unless the same shall have been relinquished in legal form," etc.*^ The third of the personal estate is a portion 41 — Chapt. 41, Sec. 1. "Dower." DESCENT AND DISTRIBUTION. 37 of the husband's or wife's dower, subject to be exhausted by claims or debts allowed against the respective estates and the cost of the administration thereof. Under the statutes of 1872 and 1874, both the husband and wife are endowered ; and, where there is no child or children or descendants thereof, the surviv- ing husband or wife dying intestate take as heirs^'^ 75. Miscellaneous. Under Section 1, of the Statutes of De- scent, it is generally held, "children" mean legitimate chil- dren. Blacklaws v. MilneJ^ Provision for widows is strictly confined to eases of intestacy. Sturges v. Eiving.^*^ Proof that certain persons are the only children who survived their father does not establish the fact that they are his only heirs. It may be that the ancestor had other chil- dren who died before he did, leaving issue who survived their grandfather. It should be shown whether he left such grand- children, and leave the law to decide who are the heirs. Suc- cession to personal property is governed by law of intestate's domicile at the time of his death, no matter what was the coun- try of his birth or his former domicile or situs of property at the time of his death. Russell v. Madden^^ Color of title owned by intestate descends to his heirs at law. Holhrook v. Forsyth^^ When devise is made to class of persons named "heirs at law" property will be divided among heirs as in case of intestacy. Kelly v. Vigas^'' Land in Illinois descends according to law of Illinois. Stoltz v. Doering*^ Where legacy lapses there being no residuary bequest, it will go to the next of kin as property undisposed of by will. Mills v. NewberryJ^ Where two persons hold as joint tenants with the right of sur- 42 — Gauch v. St, Louis M. L. 43 — 82 111. 505. Ins. Co., 88 111. 251; Starr & Curtis 44—18 111. 176. Annotated Statutes of Illinois, 45 — 95 111. 485; Wilkins v. Ellet, with Jones & Addington's Supple- 108 U. S. 256. ments thereto. Vol. 2, pp. 1456 to 46—112 111. 306. 1462 inclusive; Vol. 4, p. 446; Vol. 47—112 111. 242. 5, p. 180, and cases cited; Kurd's 48—112 111. 234. R. S. of 111., 1905, same section 49—112 111. 123. and chapter, p. 768. 38 THE LAW OF ESTATES. vivorship, upon the death of one, the whole interest passes to the survivor. But the right does not extend to growing crops, nor to crops already harvested. Pritchard v. Walker.^^ Under provision in life insurance, making insurance payable "to my heirs at law," the widow will take as heir.^^ The common law rule of inheritance no longer exists in Illinois, the statutes con- trol.^- But the Legislature may change at will laws of de- scent.^2 Where two or more persons lose their lives in a com- mon disaster, there is no presumption under the common law of a survivorship ; such must be proved by one having the bur- den of proof of survivorship.^'* The right to inherit does not exist in favor of one who has neither been born of the body of the deceased, nor legally adopted by him.^^ Lineal consanguin- ity, is that relation which exists among persons, where one is descended from the other, etc.^* As a general rule, whenever an estate is not wholly testate and cannot be entirely administered, settled and distributed under the terms of a will, the statute of descent at once ap- plies. This statute in whole or in part with the aid of the courts, distributes the personal property and vests the real es- tate of deceased person as the statute law of the different states of the Union may direct. The statute of descent was passed to meet every condition that might arise whenever any contest by interested parties results in legally setting aside the will and testament of a deceased person. This statute also ap- plies when the courts under well settled rules for the interpre- tation and construction of wills, find a deceased person in whole or in part has undertaken by testamentary bequest to dispose of his or her property in a manner forbidden by law; or for some manifest legal cause a deceased person has entirely 50—22 111. App. 286. 54— Middeke v. Balder, 198 111. 51 — Alexander v. Masonic Aid 594. Assn., 126 111. 558; Lawwill v. Law- 55— Crumley v. Worden, 201 111. will, 29 111. App. 643. 117. 52 — Kochersperger v. Drake, 167 56 — Willis Coal Mining Co. v. 111. 125. Grizzell, 198 111. 317. 53— Sayles v. Christie, 187 111. 432. DESCENT AND DISTRIBUTION. 39 failed to make a bequest, grant or devise, intelligent enough to pass property under a will. The statute may be applied where an estate is wholly testate or in part so. Thus, estates of all persons under disability, the insane, the habitual drunk- ard, the illegitimate child, the adopted child where the adoption is legally questioned, the minor, etc. The law is well settled in this country, that any state of the Union, has the undoubted right to regulate the disposition of the property of its citizens by descent, devise or alienation. The question, therefore, arises under the "Torrena Land Act," as to the descent of lands on the death of a registered owner, which may involve the validity of certain sections of that act which may at any time come before the courts for construction and considera- tion (post 380). Also the statute of uses (post 303 to 306). The statute relating to distribution in kind by order of court (post 532). Distribution of the overplus from the sale of lands (post 561, 564). Property acquired after will made (post 645). The rights of surviving husband or wife as heir of either (post 636). Renunciation of the terms of a will by the surviving husband or wife and the election of such to take a legal and equitable estate in lieu thereof under the law (post 638). The homestead estate of either husband or wife (post 623). Also where an estate reverts on failure of issue to heirs of devisor (post 191). Where failure of the object prevents conversion taking place (post 310). Where specific articles bequeathed, are sold, lost or destroyed and replaced by other articles which do not pass under will, because no provision in the will is made for such contingency (post 168). Where it is held fraud vitiates a will (post 113, 117, 276). Where repug- nant clauses are held to destroy the will (post 179 to 181, 190, 191). Where gifts causa mortis are held illegal (post 337 to 340), Where gifts inter vivos are held to be illegal (post 342). Where the rule in Shelly 's case is applied to a devise in a will (post 189 to 192). Where the statutes relating to perpetuities and per capita and per stirpes are applied and called in ques- tion in the interpretation of wills (post 249, 205, 309). Where 40 THE LAW OF ESTATES. the question of who survives in a common disaster determines to whom the particular estate shall go {post 834, et seq). Generally, therefore, the matters cited and many others grow- ing out of the contest and construction of wills have more or less relation to the statute of descent and distribution. We therefore conclude this chapter, because the Statute of "Descent" always steps in and takes the place of a will not leg'ally established by law. It will also apply where an estate is partly testate and partly intestate, as where the will of a father devises to his son John a legacy of $5,000, and does not provide for the contingency in the will of John 's dying intestate without heirs of his body; in such case, and under the father's will, the Statute of "Descent" at once applies, and distributes his portion of his father's estate to his brothers and sisters, if any exist ; if no such exist, the statute, and not the will, directs to whom the estate shall go. CHAPTER IV WILLS Sec, 76. Who may devise property. 77. A will and testament. 78. The statute of Illinois relat- ing to making of wills. 79. The fundamental and neces- sary requisites of a valid will. 80. Exposure of human imperfec- tions when will offered for probate. 81. Insane persons, idiots and im- beciles. 82. Mania, dementia or partial in- sanity. 83. Delusions. 84. Afflicted with disease. 85. Note. 86. What is legal capacity, the rule in Illinois. 87. General character of wills, deeds, etc. Sec. 88. Woman iinder the statute re- lating to wills. 89. Testamentary rights and pow- ers of men and women. 90. Have the right by will to put their property beyond the reach of the creditors of the objects of their bounty. 91. Where the will or testament is the act of another mind. 92. Testator deprived of free agency. 93. The law extends the greatest indulgence to use of lan- guage. 94. Interlineations, erasures and alterations. 95. The acknowledgment. 96. The attesting of the will. Sec. 76. Who may devise property by will. Section 1, Chapter 148, Revised Statutes of Illinois, pertaining to wills is as follows: ''Every male person of the age of twenty-one years, and every female of the age of eighteen years, being of Bound mind and memory, shall have power to devise all the estate, right, title and interest, in possession, reversion or re- mainder, which he or she hath or at the time of his or her death shall have, of, in and to any lands, tenements, heredit- aments, annuities or rents, charged upon or issuing out of 41 42 THE LAW OF ESTATES. them, or goods or chattels, and personal estate of every de- scription whatsoever by will or testament."^ 77. A will and testament. A will is said to speak from the death of the testator ;2 and until the death happens, devisees and legatees have no interest whatsoever in the property given to them by will. The author of "Redfield on Wills," defines a last will and testament, as, "the disposition of one's property to take effect after death." A codicil, as defined by Bouvier Law Dictionary, is, "a supplement to a will, an addition to, or alteration of a will"; the same authority defines the word or term "devise" as used to signify "a testamentary disposition of real estate" and the word "bequest" to signify a gift by will or testament"; a "legacy." As most wills offered for probate contain the words, "give, devise and bequeath," they often apply to both real and personal estate of the testator; and are authorized by the language of the statute of Illinois ; it may, therefore, be considered as certain, that such words used in a will and testa- ment, are used as synonymous terms, relating to the testa- mentary disposition of property. 78. The Statute Law of Illinois relating to making of wills. Section 2, of Chapter 148, entitled "Wills," is as follows: All wills, testaments and codicils, by which any lands, tenements, hereditaments, annuities, rents or goods and chattels are de- vised, shall be reduced to writing, and signed by the testator or testatrix, or by some person in his or her presence, and by his or her direction, and attested in the presence of the testa- tor or testatrix, by two or more credible witnesses, two of whom, declaring on oath or affirmation, before the county court of the proper county, that they were present and saw the testa- tor or testatrix sign said will, testament or codicil, in their 1— Starr & Curtis' Annotated Vol. 4, pp. 1283, 1284, and cases Statutes of Illinois, with Jones & cited; Kurd's R. S. of 111., 1905, p. Addington's Supplements thereto, 2050. Vol. 3, pp. 4022 to 4026 inclusive; 2— Updike v. Thompkins, 100 111. 406. WILLS. 43 presence, or acknowledged the same to be his or her act and deed, and that they believed the testator or testatrix to be of sound mind and memory at the time of signing or acknowl- edging the same, shall be sufficient proof of the execution of said will, testament or codicil, to admit the same to record: Provided, that no proof of fraud, compulsion or other im- proper conduct be exhibited, which, in the opinion of said county court, shall be sufficient to invalidate or destroy the same ; and every will, testament or codicil, when thus proven to the satisfaction of the court, shall, together with the probate thereof, be recorded by the clerk of said court, in a book to be provided by him for that purpose, and shall be good and available in law for the granting, conveying and assuring the lands, tenements and hereditaments, annuities, rents, goods and chattels therein and thereby devised, granted and bequeathed.^ 79. Fundamental and necessary requisites of a valid will. First: The testator must be twenty-one years of age, at the time of making his will; the testatrix must be eighteen years of age at the time of making her will. Second: The instru- ment must be in writing. Third : It must be signed by the testator or testatrix, in his or her presence or by some credi- ble person, in his or her presence, and by his or her direc- tion. Fourth: The instrument must be attested in the pres- ence of the testator or testatrix, by two or more credible wit- nesses, two of whom must declare on oath when the will is offered for probate, that they were present and saw the testa- tor or testatrix sign the will, testament or codicil in their pres- ence, or acknowledged the same to be his or her act and deed. Fifth : The witnesses, must under oath at the time the instru- ment is offered for probate, declare that they believed the testator or testatrix to be of sound mind and memory at the time of signing or acknowledging the said instrument. Sixth : 3 — Starr & Curtis' Annotated 1284; Vol. 5, p. 576, and cases Statutes of 111., with Jones & Ad- cited; Kurd's R. S. of 111., 1905, dington's Supplements thereto, same section, and chapter, p. 2050. Vol. 3, pp. 4026 to 4032; Vol. 4, p. 44 THE LAW OF ESTATES. That there was no fraud, compulsion, undue influence, or im- proper conduct (exhibited or shown) at the time of signing or acknowledging said instrument, which in the opinion of the proper court, where the instrument is offered for pro- bate, is sufficient to invalidate or destroy said instrument as a will, testament or codicil.* 80. Exposure of human imperfections when will offered for probate. It is possible under every will offered for probate, to expose to the world at large the mental peculiarities, ec- centricities, degree of intelligence and mental capacity of the testator or testatrix, as to whether he or she at the time of making his or her will, had sufficient mind and memory to un- derstand the nature of the business in hand, to properly make testamentary disposition of his or her property and effects; the quantum of intelligence being for the court.^ The declarations and statements of a testator, made both before or after the execution of his will, may be proved for the pur- pose of showing his mental condition at the time of the exe- cution of the will.^ And where the testator has made pre- vious wills, his declarations and statements made about the time of the execution of those former wills, upon the subject of, or manner in which he had therein disposed of his property, have been held to be competent evidence.''^ And it is held, in Craig v. Southard,^ all persons who have the means of observation are permitted to testify concerning the existence and measure of capacity of a testator, so far as it 4— Noble's Will Case, 124 111. 507; Schneider v. Manning, 121 111. 266; Canatasey v. Canatasey, 130 376. 111. 397; Gould V. Theological Sem- 6— Craig v. Southard, 148 111. inary, 189 111. 290; Critz v. Pierce, 37; Petefish v. Becker, 176 111. 106 111. 167; Brice v. Hall, 120 111. 448; Hull v. Bahrns, 158 111. 314; 597; Waugh v. Moan, 200 111. 298; Taylor v. Pegram, 151 111. 106. Sec. 2, Chapt. 148, "Wills;" Kelly 7— Taylor v. Pegram, 151 111. V. Parker, 186 111. 59; Dickey v. 106; Neiman v. Schnitker, 181 111. Parker, 42 111. 376; Crowley v. 403; Thompson v. Bennett, 194 111. Crowley, 80 111. 469; Weld v. 57; Wombacher v. Barthelme, 194 Sweeney, 85 111. 50. 111. 425. 5— Keithley v. Stafford, 126 111. 8—148 111. 37. WILLS. 45 may tend to shed light upon the issue, and may give their opinions touching mental capacity, based upon such observa- tion. The weight or effect of such opinions depends upon the means of knowledge of the witness and the facts on which it is based, possible of delineation, and the capacity of the wit- ness to correctly interpret what he has observed. Therefore, the facts upon which the opinion is predicted may be gone into, either to sustain and give force to the opinion, or to discredit it. And to the same effect Baker v. Baker.^ Often the habits, character, peculiar eccentricities and superstitious beliefs, become a subject of inquiry, where the testator or testatrix is said to harbor or hold some delusion of the mind. Thus, in Whipple v. Eddy,^^ it is adopted as the doc- trine in Illinois: "The fact that a person is afflicted with in- sanity, or labors under some delusion, believes in witchcraft, clairvoyance, spiritual influences, presentments of the occur- rence of future events, dreams, mind reading, etc., will not affect the validity of his or her will on the ground of insanity, as a person's belief can never be made a test of insanity. It being said in that case, when we leave the domain of knowl- edge and enter upon the field of belief, the range is limitless, extending from the highest degree of rationality to the wild- est dreams of superstition, and no standard of mental sound- ness can be based on one belief rather than another. What to one man is a reasonable belief is to another wholly unreason- able, and while it is true, that belief in what we generally un- derstand to be supernatural things may tend to prove insanity under certain circumstances, it is a well known fact, that many of the clearest and brightest intellects have sincerely and hon- estly believed in spiritualism, mind reading, etc. In one of the early cases, which has been cited often with approval, Ruth- erford V. Morris, ^^ the court in the beautiful language of Chancellor Kent, say, "A man may freely make his testament, how old soever he may be. It is one of the painful 9—202 111. 608. 11—77 111. 408. 10—161 111. 122 46 THE LAW OF ESTATES. consequences of extreme old age, that it ceases to excite in- terest, and is apt to be left solitary and neglected. The con- trol which the law still gives to a man over the disposal of his property, is one of the most efficient means he has, in pro- tracted life, to command the attention due to his infirmities. The will of such an aged man ought to be regarded with great tenderness, when it appears not to have been produced by fraudulent acts, but contains those very dispositions which the circumstances of his situation and the course of the natural af- fections dictated." See also Entwistle v. Meikle,^- where the person making the will was a man of 91 years of age at the time. In Smith v. Hamline,^^ it is said: While the existence of an illicit relation between the testator and the beneficiary, does not raise a legal presumption of undue influence, it is a circumstance, from which such influence may be more fully inferred. And such fact may be shown and considered with proof tending to show constraint and interference by the beneficiary; with im- paired mental capacity, loss of will power, disease and other impairments of the testator when the will was made. 81. Insane persons, idiots and imbeciles, are regarded under the law as having no mental faculties or capacity. Such per- sons are considered absolutely incompetent to transact any and all business; and, cannot do and perform any binding act; they are regarded as having no mind by which they can ex- ercise any free agency or judgment ; such cannot act for them- selves nor perform any binding act under the law; but they may be represented by conservators, who are persons created by legislative enactment, and who must act for such unfortu- nates only, to the extent and in the manner pointed out and directed by the Legislature of the several states of the Union and the courts who appoint such and give them authority. Where insanity is established in any form, those so afflicted are considered incompetent to make valid testamentary dispo- sition of their property. No law has been enacted, and never 12—180 111. 9. 13—174 111. 184. WILLS. 47 will be, by which those adjudged insane and remain so, can through their legal representatives make a valid will; if such have property or effects, they must of necessity die intestate, and their property be distributed as the law directs under the table of descent. 82. Mania, dementia or partial insanity. Bouvier's Law Dictionary, Section 33, defines mania — as general or partial, disease of the mind, which may affect the intellectual faculties or the affective or emotional faculties. And it is said: De- mentia may follow as a consequence or result of mania or in- juries to the brain, or it may be senile, or peculiar to old age. The question whether the dementia is total or partial, is always recognized as a fact for the jury to pass upon. When the mania or dementia is continuous, it is considered the party so afflicted, is incompetent to make a valid will; but if the af- fliction is partial, occurring at intervals, it is presumed that at times, the party is sane and has sufficient mental capacity to make a valid will. Thus it was held, in Roe v. Taylor. ^"^ A testator possesses testamentary capacity, within the meaning of the law, when he has an understanding of the na- ture of the business in which he is engaged, of the kind and value of the property devised, and of the persons who were the natural objects of his bounty, and of the manner in which he desires his property to be distributed; unless affected with some morbid and insane delusion as to some one of those nat- ural objects of his bounty. And it is further said in that case : a person who is not an expert, may give his opinion concerning the mental capacity of a testator, after first detailing the partic- ular facts and circumstances upon which he bases his judgment, leaving the jury to fix such value upon the opinion expressed, as the intelligence and capacity of the witness to form it will warrant. And in Yoe v. McCord,^^ it is said: he or she "must be sane with respect to the matter in hand." The H— 45 111. 485. 15—74 III. 33. 48 THE LAW OF ESTATES. following cases hold to the general doctrine noted above, which is now firmly established as a settled rule of this state.^^ 83. Delusions. In Whipple v. Eddy,^'^ it is said: "The fact that a person is afflicted with insanity, or labors under some delusion, believes in witchcraft, clairvoyance, spiritual influence, presentiments or the occurrence of future events, dreams, mind reading," etc., etc., will not affect the validity of his or her willj on the ground of insanity; as a man's belief can never be made a test of insanity. And it has nowhere been held that an eccentric person, having his or her pecu- liarities cannot make a valid will. In Clauscnnius v. Clausen- 7iius,^^ where a testator disinherited certain of his children, be- cause of influence exerted by their step-mother, and where it appeared the testator was not affected by insane delusions, made the issue, it was held, the will was valid. 84. Afflicted with disease. The testator or testatrix may be afflicted with disease, and aged. Yet if his or her capacity remains unimpaired within the meaning of the law, he or she is capable of making a valid will ; capacity existing it makes no difference that he or she has suffered for two years or more with softening of the brain.^^ 85. Note. The subjects, sound mind and memory, fraud and compulsion, undue influence and improper conduct, will be discussed and considered in regular order in chapter pertain- ing to "Contest of Wills in Chancery." 86. What is legal capacity and the rule best defining same in Illinois. Was the testator or testatrix at the time of sign- 16— Am. Bible Society v. Price, 190 111. 102; Gould v. Chicago The- 115 111. 640; Freeman v. Easly, 117 ological Society, 189 111. 292; Bak- 111. 317; Keithly v. Stafford, 126 er v. Baker, 202 111. 608; Amos v. 111. 507; Salisbury v. Aldrich, 118 Am. T. & S. Bank, 221 111. 100. 111. 200; Schneider v. Manning, 121 17—161 111. 122. 111. 376; Brace v. Black, 125 111. 33; 18—179 111. 545. Campbell v. Campbell, 130 111. 466; 19 — Rutherford v. Morris, 77 111. Burt V. Quisenbury, 132 111. 385; 397; Guild v. Hull, 127 111. 523; Craig V. Southard, 148 111. 37; Bevelot v. Lestrade, 153 111. 625. Masonic Orphans' Home v. Gracy, WILLS. 49 ing the instrument of sound mind and memory? Do you be- lieve the testator or testatrix was of sound mind and memory at that time? These same necessary questions are as old as the law itself; they were the fundamental subject of inquiry under the common law of England, and date as far back as civilized nations enacted laws to govern the rights of per- sons and property. What degree of mental capacity is requi- site to the validity of a will, and what shall be the test of that capacity by the court and jury, have been answered differ- ently by different courts. The courts universally hold, or nearly so, that one grossly ignorant, or of very limited capac- ity, if otherwise of sane mind, may make any instrument, how- ever complex it may be, and be bound thereby.^^ In Trish v. Newliall,^^ it is said: When a court undertakes to inform the jury what amount of mental capacity a man must have to know and understand what he is about, it is futile, and tends rather to mislead than to afford any practical aid to a jury. Thus it has been held in Meeker v. Meeker,^^ as one of the rules in rela- tion to such matter, that a person who is capable of transacting ordinary business, is also capable of making a valid will. It is not required that he shall possess a higher capacity for that than for the transaction of the ordinary affairs of business. A man ca- pable of buying and selling property, settling accounts, col- lecting and paying out money, or borrowing or loaning money, must usually be regarded as capable of making a valid disposi- tion of his property by will. The rule is the same in the case of a sale of property, and its disposition by will, and the usual test is that the party be capable of acting rationally in the ordinary affairs of life. "^3 The rule is stated in 20— Trish v. Newhall, 62 111. 204, Freeman v. Easly, 117 111. 317 and case cited in opinion; also cases English v. Porter, 109 111. 285 cited generally in this section. Schneider v. Manning, 121 111. 376 21—62 111. 204. Story's Will Case, 20 111. App. 183 22—75 111. 260. Campbell v. Campbell, 130 111. 481 23— Brown v. Riggin, 94 111. 560; Myatt v. Walker, 44 111. 485; Trish Rutherford v. Morris. 77 111. 397; v Newhall, 62 111. 204; Green v. Green, 145 III. 264. 50 THE LAW OF ESTATES. Campbell v. Campbell,^^ One may have the capacity to comprehend a few simple details, and in consequence have testamentary capacity to make valid disposition of his prop- erty, while if he had to remember many facts, and comprehend many details, the same degree of mental capacity would be wholly insufficient to an intelligent understanding of the busi- ness of which he was engaged. The difficulty of stating stand- ards or tests by which to determine the degree of mental ca- pacity of a particular person, has been everywhere recognized, and grows out of the inherent impossibility of measuring men- tal capacity, or its impairment by disease or other causes.^s 87. General character of wills, deeds, etc. A paper merely signed, but not attested, cannot be treated as a will ; nor is an indorsement made on a benefit certificate issued by fraternal association or fraternal insurance association, directing to whom the benefit shall be paid a will; and such indorsement is not revoked by subsequent marriage.^^ The essential dif- ference between a will and a deed is this, the deed takes effect, if at all, immediately on its execution and delivery, while a will does not take effect till the testator's death; but the absence of actual delivery does not necessarily invalidate the deed, if it ap- pears that the grantor retained possession, and that he intended it to take effect at its date.^^ 88. A woman under the statute relating to wills, whether married or single, has the right and power to devise by will and testament her separate estate. And under the statute Der- taining to women, chapter 68, sections 7, 9, 10, may manage, sell and convey, her separate property, to the same extent and in the same manner that the husband can property belonging to him. She may thus dispose by will of such property owned 24—130 111. 481. 26— Highland v. Highland, 109 25— Herman v. Vogt, 181 111. 111. 367. 400; Ring v. Lawless, 190 111. 520; 27— Cline v. Jones, 111 111. 569; Swearington v. Inman, 198 111. Olney v. Howe, 89 111. 556; Bruner 256; Compher V. Browning, 219 111. v. Bruner, 115 111. 40; Marsey v. 429. Huntington, 118 111. 80. WILLS. 51 by her at the time of her marriage or such as she acquired dur- ing her marriage in good faith, from any person other than her husband, by devise, descent, or otherwise. But she has no power to devise her homestead, so as to deprive her husband of that estate^ nor deprive him of his dower right or other right fixed by established law.^s 89. Testamentary rights and powers of men and women. Any person competent to make a will, or testamentary dis- posal under the statute, is, in general unlimited, whether as to person or object. The testator or testatrix, acting free from undue influence, may dispose of his or her property in any way not forbidden by law; and it makes no difference whether the disposition is just or unjust. The testator or testatrix is under no obligation to divide equally among his or her children; he or she may cut off one and prefer another, or may give all to a stranger at pleasure.^^ An afterborn child may be totally disinherited, and the bounty of the parents may be limited to any sum however insignificant.^*^ And it is the settled law of Illinois, that if one accepts a devise under a will, they will be estopped and cannot set up any claim of their own to defeat any part of the will, including its reeitgOs as to the titles of the testator or testatrix.^^ 90. Have the right by will to put their property beyond the reach of the creditors of the objects of their bounty. A testator and testatrix in disposing of his or her property by will, has the right and power to put the property so disposed 28— In re Tuller, 79 111. 99; Em- 317; Schneider v. Manning, 121 III. mert v. Hayes, 89 111. 11; Henson 376; Uhlich v. Muhlke, 61 111. 499; V. Moore, 104 111. 403; Starr & Cur- Nicewander v. Nicewander, 151 111. lis' Annotated Statutes of 111., with 156; McCommon v. McCommon, Jones & Addington's Supplements 151 111. 428; Clausennius v. Claus- thereto. Vol. 2, pp. 2124, 2125, 2126 ennius, 179 111. 545. to 2132; Vol, 4, p. 674, and cases 30 — Osborn v. Jefferson Nat'l cited; Kurd's R. S. of 111., 1905, Bk., 116 111. 130. same section and chapter, p. 1147. 31 — Cunningham v. Dougherty, 29— Freeman v. Easly, 117 111. 220 111. 45, and cases cited in the opinion. 52 THE LAW OF ESTATES. of beyond the reach of the creditors of the objects of their bounty. They or either of them may devise a life estate or devise in trust.^^ 91. Where the will or testament is the act of another mind. The rule adopted in Nicewander v. Nicewander^^ is: There is undue influence for which a will may be set aside, where, by the pressure of improper persuasion, the testator or testatrix, is virtually deprived of his or her free agency, so that the will is the act, not of the testator's or testatrix's own mind, but that of another. 92. Testator deprived of free agency. It is also held, that undue influence, to invalidate a will, must be connected with the execution of the will and be operative at the time the will is made. And it must be such as to deprive the testator or testatrix of free agency .^^ And it is immaterial by whom un- due influence is exercised.^ ^ 93. The law extends the greatest indulgence to use of lan- guage. It is merely necessary that the will express the in- tention of the testator or testatrix. Courts construe wills, so as to ascertain the intention of the maker ; and, where the will construed is not inconsistent with the law of the land, the court will always give effect to the intention expressed by the instrument.^^ No word or phrase wiU be rejected unless it is unintelligible, or so far repugnant to other and controlling por- tions, that it can have no effect.^ '^ 32— Emerson v. Marks, 24 111. 337; Wolfer v. Hemmer, 144 111 App. 642; Stein v. Whitehead, 111 554; Ducker v. Burnham, 146 111 111. 247. 9; Cassen v. Kennedy, 147 111. 660 33—151 111. 156. Allen v. McFarland, 150 111. 455 34— Wilber v. Wil 138 111. Crerar v. Williams, 145 111. 625 446; Pooler v. Christman, 145 111. Kelly v. Gonce, 49 111. App. 82 405; Taylor v. Pegram, 151 111. Perry v. Bowman, 151 111. 25; Rob- 106; Purdy v. Hall, 134 111. 298. erts v. Roberts, 140 111. 345. 35— Smith v. Hamline, 174 111. 37— Smith v. Curry, 52 111 App. 184. 227; Bates v. Gilbert, 132 111. 287; 36— In re Cashman's Estate, 134 Rickner v. Kessler, 138 111. 636. 111. 88; Schafer v. Schafer, 141 111. WILLS. 53 94. Interlineations, erasures and alterations of will, are al- ways a subject of inquiry and investigation.^s A clause inter- lined in a duly executed will is invalid, where it is unsigned and the will is not re-attested. And this, although the alteration is made by one of the witnesses by direction of the testator. A clause in a will through the words of which a line is drawn, by direction of the testator, before the will was signed, will be re- garded as cancelled ; and it makes no difference if the words are clearly legible, it is no more a part of the will, than if the words were completely obliterated; nor than if the clause had never been inserted.^^ 95. The acknowledgment, by the testator or testatrix, that the instrument is his or her will, need not be in words.^^ 96. The attesting of the will. The will if attested in the presence of the testator or testatrix, and where the witnesses are in such a position when they sign, that the testator or testatrix can see them if he or she chooses, or a formal request and desire by the testator or testatrix to witnesses to bear witness to will is sufficient. ■^i It is not necessary for a testator or testatrix to state, or for the subscribing witnesses to know, that the instrument which they attest was his or her will ; nor for him or her to acknowledge to the subscribing witnesses that she had signed it; it being sufficient if she acknowledged to them, either by word or acts, that the instrument was her act and deed.42 38— Hesterbrook v. Clark, 166 109; Harrington v. Stees, 82 111. 50; 111. 241. Buchanan v. McLennan, 105 111. 39— Laurie v. Radnitzer, 166 111. 56; Drury v. Connelly, 177 111. 47; 609. Sloan v. Sloan, 184 111. 583; In re 40— Allison v. Allison, 46 111. Story's Will, 20 111. App. 183; Gal- 61; In re Story's Will, 20 111. App. lagher v. Kilkeary, 29 111. App. 183; Harp v. Parr, 168 111. 474. 415. 41— Amber v. Weishaar, 74 111. 42— In re Will of Barry, 219 111. 391. CHAPTER V WILLS— CONTINUED Sec. 97. Nuncupative wills. 98. Conjecture or inference from testator's language does not constitute nuncupative will. 99. Citation or publication re- quired in all cases where nuncupative will shall be proved and recorded. 100. Joint and mutual wills. 101. Keith V. Miller. 102. Revocation of will. Statutory requirement. 103. Child born after will— Mar- riage revokes prior will. Sec. 104. Afterborn child. 105. An adopted child entitled to benefits of section. 106. Intention to disinherit after- born child need not be ex- pressly stated. 107. Mother's will attempting to provide for her children by her own act failed. 108. Miscellaneous points. 109. Erasure of part of will, effect. 110. Where the codicil revokes the will. Sec. 97. Nuncupative wills. Under the statute, section 15, chapter 148, entitled ''Wills," are to be regarded as made in the time of the last sickness of the testator or testatrix; such wills when the statute is followed strictly or substantially are good and available in law for the conveyance of personal prop- erty, thereby bequeathed.^ Such will under the statute must be committed to writing within twenty days, after the making thereof, and proven before the Probate or County court by two or more credible witnesses, who were present at the speaking and publishing thereof; who shall declare on oath or affirmation, that they were present and heard the testator pronounce the said words, and that they believe him or her to be of sound mind and memory; and that he or she did at the same time, desire the persons present, or some of them, to bear witness that such was his or her will, or 1— McCullom V. Chidester, 63 111.477. 54 WILLS— CONTINUED. 55 words to that effect; and it being also proven by two disin- terested witnesses, other than those hereinbefore mentioned, that the said will was committed to writing within ten days after the death of the testator or testatrix; and no proof of fraud, compulsion or other improper conduct be exhibited, which, in the opinion of said court, shall be sufficient to invali- date or destroy the same ; and all such wills, when proven and authenticated as aforesaid, shall be recorded in like manner as other wills are directed to be recorded by this act ; provided that no letters testamentary shall be granted on such will, until the expiration of sixty days, after the death of the testator or testatrix. Such has been the statute law of this state since 1845.2 iji Baylor v. Baylor,^ the evidence established' a strict or substantial compliance with the statute, and it was held, such evidence established a valid nuncupative will, as the statutory requisites were complied with.* In Harrington v. Stees, it is held: The statute restricts a person under common law power to make nuncupative will, in his last illness; and al- though testator have time to have his will reduced to writing, it may be nuncupative ; no formal request to witness such will is necessary. And in Weir v. Chidester,^ it is held, testator need not use terms "devise" and "bequeath"; nor in terms call persons to "witness his will" substantial compliance with statute held sufficient. But in Morgan v. Stevens,^ it is held, there must be at least two witnesses to the facts essential to the proving of nuncupative will. 98. Conjecture or inference from testator's language does not constitute nuncupative will. While such wills are fre- quently made, and have attained a foothold in our jurispru- dence, they are looked upon with much suspicion when offered 2 — Starr & Curtis' Annotated 3 — Baylor v. Baylor, 9 111. App, Statutes of 111., with Jones & Ad- 410. dington's Supplements thereto, 4 32 m. 50, Vol. 3, pp. 4043, 4044; Vol. 4, p. 1290, and cases cited; riurd's R. S. of ^ ^^ "^- ^^2- 111., 1905, same section and chap- 6—78 111. 287. ter, p. 2053. 56 THE LAW OF ESTATES. for probate; for if not strictly following the law, or substan- tially following the provisions of the statute, might open the door to frauds and impositions the statute was passed to pre- vent. In Arnet v. Arnef^ it is said: There is noth- ing in this ease to show that the testator ever expected or wished that any one present should remember what he had said, or should ever repeat those declarations, or should ever go before any tribunal to prove that such was his will. If we say that such must have been his desire, from the nature of things, that is but conjecture at last, and the legislature has declared that such conjecture shall not be sufficient. Under- standing the operations of the human mind as well as any of us, the legislature knew that most likely any one would, in extremis, declare to those about him the disposition he wished made of his property, would also desire that those present would remember and bear witness to his wish. Such an infer- ence must necessarily arise in almost every case where a will is declared by a dying man to those around him, but the law- makers thought it unsafe to rely upon such inference, however strong, and saw fit to require a direct expression of such wish by the testator at the time of pronouncing the words of the will. In re Grossmati's Estate,^ decedent was taken suddenly ill, and an operation was set for three o'clock the next day, and his brothers and others consulted with him about his making a will; one of the brothers wrote down the wishes of decedent, and said he would write it up and send it over in the morning, and, if it was right, decedent could sign it, and, if not right, it could be made so. Nothing was said by decedent as to desiring any one present to bear witness that it was his will, as provided in Revised Statutes, chapter 148, section 15, relating to nuncupative wills. The next morning, before the will was brought to him, he was dead. Held, not to be valid as a nuncupative will. 99. Citation or publication required in all cases where nuncupative will shall be proved and recorded. The court shall 7—27 111. 247. 8—175 111. 425. WILLS— CONTINUED. 57 issue a citation to the heirs and legal representatives of the testator or testatrix, if they reside in the county, if not, then said court shall cause an advertisement to be inserted in some one of the newspapers printed in the state, notifying the said heirs and legal representatives of the testator or testatrix, at which time and place letters testamentary will be granted upon such will, requiring them and each of them to appear and show cause, if any they have, why letters testamentary should not be granted; and if no sufficient cause be shown, letters shall be granted thereon, as in other cases.^ 100. Joint and mutual wills. Such wills are held valid, as the separate will of whichever dies first; they are often the subject of litigation and generally prove unsatisfactory to the parties making the same; resulting trust litigation is often the outcome of such wills. Under the law two or more persona may execute a joint will, which will operate as if executed separately by each, and will require a separate probate upon the death of each as his or her will.^*^ 101. In Keith v. Miller?-'^ The facts of record show, that Keith and his wife were married in 1845, were well advanced in years and were without children. They had a farm of 280 acres of valuable land, the accumulation of their joint labor; they talked over the matter as to how it should be disposed of at their death. The husband's evidence shows, that he and his wife talked over their affairs and about the land each should have, and after that conversation it was re- duced to writing in these wills, that it was put in the wills just as they agreed; that he wrote the wills and they were in his own handwriting. The court holding, where husband and 9— Statutes, Chap. 148, sec. 16, 10— Re Diez, 50 N. Y. 88; Kun- entitled "Wills;" Starr & Curtis' nen v. Zurline, 2 Cin. (Ohio) 440; Annotated Statutes of Illinois, Schumacher v. Schmidt, 44 Ala. with Jones & Addington's Supple- 454. ments thereto. Vol. 3, p. 4044; 11—174 111. 64. See cases cited IHurd's R. S. of 111., 1905, same sec- in opinion, tion and chapter, p. 2053. 58 THE LAW OF ESTATES. wife having agreed upon a testamentary disposition of their property, and the husband prepares two wills at the same time to give effect to that agreement, the wills will be construed to- gether as a single instrument. Citing the well established rule, "that where different instruments are executed as the evidence of one transaction or agreement, they are to be read and con- strued as constituting but a single transaction. "12 102. Revocation of vdll — how accomplished. Revised Stat- utes of Illinois, chapter 148, section 17, is as follows: "No will, testament or codicil shall be revoked, otherwise than by burning, cancelling, tearing or obliterating the same, by the testator himself, or in his presence, by his direction and con- sent, or by some other will, testament or codicil in writing, declaring the same, signed by the testator or testatrix, in the presence of two or more witnesses, and by them attested in his or her presence ; and no words spoken shall revoke or annul any will, testament or codicil in writing, executed as afore- said, in due form of law.''^^ In Stetson v. Stets&n,^'^ the statute is cited and ap- plied in these words. No will can be revoked other than by burning, cancelling, etc., or by some other "will, testament or codicil" and cannot be revoked by any writing not testa- mentary in character; the destruction of a will which revoked a former one, revives the former. It is also held in the same case, that the English statute of Victoria, providing that no will or codicil, which has in an}' manner been revoked, shall be revived otherwise "than by a re-execution thereof, or by a codicil showing an intention to revive the same" has not been adopted by the courts of Illinois and is not the law of this state. Under Colorado statute erasure of will held to revoke same.^^ 12— Wilson V. Roots, 119 111. 379; Vol. 3, pp. 4044, 4045; Vol. 4, p. Gardt v. Brown, 113, 475; Duncan 1290; Vol. 5, p. 579, and cases V. Charles, 4 Scam. (111.) 561; cited; Kurd's R. S. of 111., 1905, Freer v. Lake, 115 111. 622. same section and chapter, p. 2053. 13— Starr & Curtis' Annotated 14—200 111. 601. Statutes of Illinois, with Jones & 15 — Glass v- Scott, 14 Colo. Ct. Addington's Supplements thereto, of App. 378. WILLS— CONTINUED. 59 103. Child bom after will — marriage revokes prior will. Revised Statutes of Illinois, chapter 39, section 10, "Descent," is as follows : "If, after making a last will and testament, a child shall be born to any testator, and no provision be made in such will for such child, the will shall not on that account be revoked ; but unless it shall appear by such will that it was the intention of the testator to disinherit such child, the devises and legacies by such will granted and given, shall be abated in equal pro- portions to raise a portion for such child equal to that which such child would have been entitled to receive out of the estate of such testator if he had died intestate, and a marriage shall be deemed a revocation of a prior will. "^^^ In Hundall v. Ham,^'^ this section of the statute was held constitutional. In that case the court speaking of the pro- vision of the statute, "a marriage shall be deemed a revocation of a prior will." Prior to the enactment of this statute it was held in this state, where husbands and wives are heirs to each other, a subsequent marriage operated as a revocation of a will, disposing of the whole estate of the testator, which made no provision for such contingency or change of relation as the sub- sequent marriage.^* Under these decisions the will of J. T. would have been revoked by his subsequent marriage regard- less of the provisions of the statute, since the will contained no provision in contemplation of the relation arising out of such marriage, unless the rule in that respect would be affected by the terms of the ante-nuptial contract. That contract de- clared that Mary F. had been informed of the will, and ap- proved of it, and she agreed that she would not interfere with it in any way during the lifetime of the said J. T., or there- after. It is argued on behalf of the claimants under the will 16— Starr & Curtis' Annotated 17—172 111. 82; Tyler v. Tyler, Statutes of Illinois, with Jones & 19 111. 151 ; Am. Bd. of Forg'n Mis- Addington's Supplements thereto, sions v. Nelson, 72 III. 564 ; Duryea Vol. 2, p. 1433; Vol. 4, p. 438; Vol. v. Duryea, 85 111. 41. 5, p. 177, and cases cited; Kurd's 18 — Hundall v. Ham, 172 111. 85. R. S. of 111., 1905, same section and chapter, p. 765. 60 THE LAW OF ESTATES. that this agreement prevented a revocation under the rule prior to the passage of the statute, and that there was no revocation under the statute because of its invalidity. It will not be necessary to consider the effect of her agreement upon her rights, for the reason that, if the statute is valid, plaintiffs in error have a right to claim the benefit of it, and the will is revoked by virtue of the statute. Page 85, the statute was passed at the same session of the legislature as the Statute of Wills providing for a revocation of a will by particular means mentioned in that statute, and the two provisions are to be read together, as embracing the legislative will on that subject. 104. Afterborn child. In Salem National Bank v. White,^^ the statute relating to afterborn child was again con- .strued and applied as to the rights of such child. The court by its opinion finds the testator died on December 13, 1863, without changing or amending his will, which was duly probated, it being held from that fact that it does not appear that William White intended to disinherit Joseph I. White, it follows, that the devise of the mortgaged premises, except the said strip, should be abated to raise a portion for appellee, Joseph I. White, equal to that which he would have been en- titled to receive out of the estate of William White, if the latter had died intestate. In other words, under the construction given to the foregoing statute by this court in Ward V. Warc?,2o Joseph I. White is entitled to an undivided one- fourth part of that portion of the premises embraced in the mortgage, of which his father died seized, and which was de- vised to his mother and his brothers and sisters, subject to the dower therein of his mother, the widow, Susan White. 105. An adopted child entitled to benefits of this section. In Howard v. Flannigan,-^ it is held, an adopted child, is entitled to the benefits of this section. The court quoting the section of the statute in question, say: That act 19—159 111. 136. 21—200 111. 400. 20—120 111. 111. WILLS— CONTINUED. 61 was in force July 1, 1872. The Act of 1867, providing for the adoption of children was then in force. (Gross' Statute, Ed. 1869-319.) That act provides that the relation between a person adopting a child and such child should be, as to their rights and liabilities, the same as if the relation of parent and child existed between them, except that the adoptive father or mother should never inherit from the child. Afterwards the law in relation to the adoption of children was revised by the act in force July 1, 1874, constituting chapter 4 of the Revised Statutes, section 5 of that act being as follows: "A child so adopted shall be deemed, for the purpose of inheritance by such child, and his descendants and husband or wife, and other legal consequences and incidents of the natural relation of parents and children, the child of the parents by adoption, the same as if he had been born to them in lawful wedlock, except that he shall not be capable of taking property ex- pressly limited to the body or bodies of the parents by adop- tion, nor property from the lineal or collateral kindred of such parents by right of representation." By this section an adopted child, for the purpose of inheritance and other legal consequences and incidents of the natural relation of parents and children, is declared to be, in law, the child of the parents, the same as if he had been born to them in lawful wedlock, except as therein stated. By the plain and unambiguous lan- guage of the statute the right of the plaintiff in error to inherit from B. H. is made identical with the right of a child born to her, and when plaintiff in error became her child by adoption after the making of the will, the effect, in law, was precisely the same as the birth of a child to the testatrix.22 106. Intention to disinherit after born child need not be expressly stated. In Hawhe v. C. & W, I. R. B. Co.,"^'^ 22— Watts V. Dull, 184 111. 91; thereto. Vol. 1, p. 354; Vol. 4, p. Webb V. Jackson, 6 Colo. Ct. of 46; Vol. 5, p. 22, and cases cited; App. 211; Starr & Curtis' Anno- Kurd's R. S. of 111., 1905, same sec- tated Statutes of Illinois, with tion and chapter, p. 128. Jones & Addington's Supplements 23 — 165 111. 567. G2 THE LAW OF ESTATES. it is said: There is another significant fact which has an important bearing on the construction of the will. At the time the will was executed by the testator he had two children then living, one four and the other two years old. These chil- dren were excluded from taking any portion of the testator's estate by will. Is it reasonable to believe that the testator intended to exclude these two infants and not at the same time exclude another child to be born within the next two months after the will was executed? It seems plain, if the testator had intended to make any distinction between his children then born or unborn, he would have inserted a provision in his will manifesting that intention. In order to disinherit appellant the testator was not required to state the fact in express terms in the will. It is enough that the intention appears from the will, upon consideration of all its provisions. The statute in question was before the court in shorn V. Jefferson National Bank,^^ and in the decision of that case it was among other things said (p. 136) ; But whether any provision is made for afterborn children or not, the will, under the statute, must still remain as originally made, **if it shall appear by such will that it was the intention of the testa- tor to disinherit such child or children," In Laurie V. Radnitzer,^^ the same doctrine was applied, where the will contained nothing from which it could justly be said the testator did not intend the afterborn child should inherit. The court holding, that it does not appear by the will in question, expressly or by implication, that the testator intended to dis- inherit the child in question, and that such child did inherit under the section of the statute.^^ 107. Mother's will attempting to provide for her children, by her own act, failed. In Oshorn v. Jefferson National Banli,^'' the testatrix, soon after her marriage, being about to go abroad, made and published her last will and testament. 24—116 111. 130. 26— See Sherrer v. Brown, 5 25—166 111. 609. Colo. Ct. of App. 255, 27—116 111. 130. WILLS— CONTINUED. 63 One of the paragraphs of the will, as shown by the record of the ease, is as follows: "In ease my husband, Francis, shall not survive me, and I shall die leaving a child or children, then I give, devise and bequeath unto such child^ or if there be more than one, then to such children, forever, all my estate, property and effects, real and personal, in whatever it may consist or wherever situated at the time of my decease." The testatrix died in 1880, leaving her surviving three children, born after the execution of the will, and her husband. Held, that the will showed a clear intention on the part of the testatrix to disin- herit her afterborn children, in case of her husband surviving her, the court saying : The testatrix in this case had the power to disinherit her afterborn children, and she has seen proper to do it upon a contingency which has happened, and great as the hardship to them may be, we feel constrained to hold that the will, under the statute, is valid, and must be enforced as their mother made it and allowed it to remain unrevoked and unchanged till her death. 108. Miscellaneous points. The marriage of testator re- vokes prior will absolutely ; and means marriage of either man or woman. And the presumption of law is, testator knew that subsequent marriage revokes his will.^^ 109. Erasure of part of will effect. Where a bequest in a will has been erased by the testator by the drawing of lines across the words comprising it, the erased portion ceases to be a part of the will, as much so as if it had never been inserted in it.29 110. Where the codicil revokes the will. In Vestal v. Gar- reft,^^ the rule is laid down that a codicil revokes the will only in so far as it is clearly inconsistent therewith ; the codicil in question did not revoke the devise to the daughter, but only 28— Duryea v. Duryea, 85 III. 41; 29— Hubbard v. Hubbard, 198 111. McAnnulty v. McAnnulty, 120 111. 621. 26; Crum v. Sawyer, 132 111. 443; 30—197 111. 398. Sloniger v. Sloniger, 101 111. 278; Hundall v. Ham, 172 111. 82. 64 THE LAW OF ESTATES. incumbered the land given her with a life estate in favor of testator's wife, especially as otherwise the fee in such land would have been left intestate, and as other clauses in the will giving life estates in every instance provided for a disposition of the fee. The general rule applied in this case being : * ' Where a codicil is appended to a will and does not contain any clause of revocation, the provisions of the will are to be disturbed only so far as is absolutely necessary to give effect to the provisions of the codicil, and in other respects, such a will and codicil are to be construed together."** 31 — Page on Wills, sec. 462, and cases cited in notes. CHAPTER VI PROBATING WILLS IN COURTS OF PROBATE Sec. 111. Petition to be filed, notice to be given. 112. The facts required by peti- tion must be stated truth- fully. 113. Court of probate at subse- quent term may set aside order of probate, for fraud or lack of jurisdiction. 114. Probate of will before and after act of 1897. 115. Witnesses to will. 116. Where subscribing witnesses to will are dead, lost will. 117. What necessary to show Sec. when will offered for pro- bate. 118. Will to remain with clerk, copies evidence. 119. Foreign will admitted to pro- bate. Effect of wills proven without the state. 120. Will to be recorded, notice. certified copies as evidence. 121. Authentication of foreign will. 122. Notice of foreign will, to ad- verse interests. 123. Foreign wills admitted to probate. 124. Place of probate. Sec. 111. Petition to be filed — notice to be given. Par. 21, section 1, chapter 148, * ' Wills, ' ' provides : ' ' That before any will shall be admitted to probate the person desiring to have the same probated shall file a petition in the probate court of the proper county asking that said will be admitted to probate, which petition shall state the time and place of the death of the testator and the place of his residence at the time of his death; also the names of all the heirs-at-law and the legatees, with the place of residence of each, when known, and when unknown, the petition shall so state, and the said petition shall be verified by the affidavit of the petitioner. And thereupon the clerk of said county court shall send by mail to each of said parties a copy of said petition within five days after the filing thereof, and not less than twenty days prior to the hearing on said peti- tion. And in case the postoffice address of any of said parties 5 65 66 THE LAW OF ESTATES. is not shown by the said petition, then publication shall be made for at least three weeks before the day set for the hear- ing in a newspaper of general circulation published in the county where said will is to be offered for probate, which pub- lication notice shall contain the name of the testator, the heirs- at-law and legatees, when known, the time and place where said will is to be offered for probate: Provided, that in case such a petition is not filed and a will has been deposited in said county court for the space of 10 days, then it shall be the duty of the county court to proceed to probate said will without petition being filed, but only after having caused publication and notice of the intention to probate said will to be given to the parties in interest as to the court may seem proper." As amended by Act in relation to the probate of wills, in force July 1, 1897.1 112. The facts required must be stated correctly and truth- fully. In the case of W rigid v. Simpsan,- the record shows that the parties petitioning for the probate of a will, knowingly and intentionally omitted the name of one of the heirs-at-law, a daughter of the deceased, so that she had no notice whatsoever of the order admitting the will to probate, until too late to take an appeal as provided by the probate act. It appears, that as soon as the heir ascertained what had been done, and at a subsequent term of the probate court, she filed her petition in that court, alleging, "that if she had received notice, she could have made a good defense by showing, the parties petitioning for probate of the will actually knew she was a daughter of deceased, and should have named her in the petition filed by them for the probate of the will in question as an heir. ' ' The court in its opinion in that case say : ' ' The admission of said will to probate acted as a judgment, obtained by fraud, and such judgment could be re-examined and set 1 — Starr & Curtis' Annotated 579, and cases cited; Kurd's R. S. Statutes of Illinois, with Jones & of 111., 1905, same paragraph, sec- Addington's Supplements thereto, tion and chapter, p. 2054. Vol. 4, pp. 1290, 1291; Vol. 5, p. 2—200 111. 62. PROBATING WILLS. 67 aside at a subsequent term of the probate court by the party- aggrieved by the fraud, under the well settled rule of law, that a court may protect its own dignity and prevent itself from being made an instrument in the hands of a designing man to accomplish a wrong." In applying this rule, however, the court specifically states, that no question of the rights of third parties arise on the record.^ 113. The Court of Probate at a subsequent term may set aside its order of probate where fraud is shown, or it is lacking in jurisdiction. In Wt-ight v. Simpson,'^ cited in the pre- ceding section, it is also said: That a compliance with the statute is necessary and requisite to the probate of a will ; that the probate court is warranted in setting aside the probate of a will after the lapse of the term of such court, at which the order of probate was obtained in consequence of fraudulent acts, notwithstanding the aggrieved party has filed a bill in chancery to contest the will and its probate. In the case of Davis V. Vpson,^ it is held: It is not within the gen- eral jurisdiction of courts of equity (in the absence of enabling statutes), to entertain bills to set aside the probate of will on the ground the probate court was lacking in jurisdic- tion.^ But if the probate court was lacking in jurisdic- tion of the subject matter, as found by the appellate court, the judgment admitting the will- to probate could be revoked by motion entered either at the term at which the judgment was made or at any subsequent term. If jurisdiction was lacking, the proceedings resulting in the admission of the will and codicil to probate is void, and may be set aside at any time by motion in the probate court. 114. The probate of a will before and after the act of 1897. Prior to the act in question, the probate of a will was an ex 3— Bateman v. Reitler, 19 Colo. 6— Luther v. Luther, 122 111. 547. 558; 23 Am. & Eng. Enc'y of La-w- 4—200 111. 56. (2d Ed.), 136, 138. 5—209 111. 211. 68 THE LAW OF ESTATES. parte proceeding, wherein the inquiry of the court was limited to the determination of the facts pertaining to the execution of the will specified in section 2 of the act entitled ''Wills." That section contemplated no contest, and required no citation of the heirs-at-law and legatees or other representatives of the testator. The act of 1897 does require notice to such par- ties, and is in fact preliminary to a contest, and where, under the late act for the probate of the willj which must be read in connection with section 7 of the same act, the probate is de- nied, no contest can be had in chancery, the remedy is by ap- peal.'^ 115. Witnesses to will. Section 3 of the act relating to Wills empowers the court of probate to compel the attend- ance of attesting witnesses, who may be fined and imprisoned if they fail to appear w^hen duly summoned; if the witness should be a non-resident a dedimus protestatum may issue from the court, with interrogatories in chief and cross for such witness to answer, directed to officers authorized by law to take evidence and administer oaths.^ 116. Where subscribing witnesses to will are dead — lost will. If the wall appears to have been regularly executed and the signatures of the testator and of the deceased subscribing witnesses are proved to be genuine, the inference arises that the witnesses believed the testator to be of sound mind and memory, even though there is no recital to that effect in the attestation clause, and there is proof that the testator at the time the will was made, transacted intelligently the ordinary business affairs of life. The opinion was rendered in connec- tion with the construction of section 2, chapter 148, of wills; and section 6 of the same act providing for proof of hand writing of deceased witnesses and for the taking of secondary 7 — Clausennius v. Clausennius, Addington's Supplements thereto, 179 111. 552; Wright v. Simpson, Vol. 3, pp. 4033, 4034 and cases 200 111. 63. cited; Kurd's R. S. of 111., 1905, S — Starr & Curtis' Annotated same section and chapter, p. 2050. Statutes of Illinois, with Jones & PROBATING WILLS. 69 evidence, in "all cases where any one or more of the witnesses of any will, testament or codicil, shall die, become insane, or remove to parts unknown to parties concerned, so that his or her testimony cannot be procured," etc. Moore v. Moore.^ It appears to be the established law, that where a written instrument has in fact been made, executed and deliv- ered, and afterwards lost or destroyed, or not produced under proper notice to the party having possession of the same, a legal presumption arises that such instrument, if a will, was destroyed by the testator or lost or destroyed by the party hav- ing possession of the same when such is traced into his pos- session ; and such presumption is against the party having pos- session when the will is not produced.^^ The pre- sumption is rebuttable; Bedfield on Wills.^''^ In the matter of Page, Administrator,^ 2 ^j^g cases cited were fully reviewed, the court holding that section 6 of the statute of wills, relating to the proof of wills when an attest- ing witness is dead, applies to lost or destroyed wills the same as to wills produced before the court. In this country, the ruling is general, that a will may be established by one, only, of the attesting witnesses, if he can testify to a compliance with the statute relating to its execution. This does not, how- ever, dispense with the necessity of the will being attested by two witnesses; and this rule applies equally to a lost or de- stroyed will. The contents of a lost or destroyed will may be proved by the testimony of a single witness. The declarations, written or oral, made by a testator after the execution of his will, are, in the event of its loss admissible, not only to prove that it has not been cancelled, but also as secondary evidence of its contents. Thus, if a testator were to say, "when I am 9 — 201 111. 268. presumption is clearly stated in 10— Moore V. Wright, 90 111. 470; Betts v. Jackson, 6 Wend. 173; Williams v. Case, 79 111. 356; Wing Knapp v. Knapp, 10 N. Y. 276; V. Siierrer, 77 111. 200; Rhode v. Chisholm v. Ben, 7 B. Mon. 408; McLean, 101 111. 467; Spencer v. Smock v. Smook, 11 N. J. Eq. 156. Boardman, 118 111. 553; Redfield 11— P. 307, Sec. 8; p. 348, Sec, on Wills, p. 307, Sec. 8; p. 348, 9, and notes. Sec. 9, and note 14. The rule of 12— Page Adm'r, 118, 576. 70 THE LAW OF ESTATES. dead, you will find my will in such a place," or, "I have left my estate of Blackacre to my son John," or "I have left 5,000 pounds sterling to my daughter Mary," such, or similar dec- larations, would be receivable in evidence to show that the will was, so far as was known to the testator, in existence at the time they were made.^^ So where the subscribing witnesses to a will are dead, and there is no formal recital in the attestation clause that they "believed the testator to be of sound mind and memory," and the will on its face appears to be regularly executed, and the signatures of the testator and the witnesses are shown to be genuine, and there is proof that the testator, at the time the will was made, transacted intelligently the ordinary business affairs of life, such will is prima facie entitled to probate.^"* 117. What necessary to show when vdll offered for probate. In the court of probate four general requisites are necessary to entitle a will to probate. First: The instrument offered must be in writing and signed by the testator or testatrix, or in his or her presence by some one under his or her direction. Second : It must be attested by two or more credible and com- petent witnesses and two witnesses must prove that they saw the testator or testatrix sign the will in their presence, or that he or she acknowledged the same to be his or her act and deed. Third : The witnesses must swear that they believed the testa- tor or testatrix to be of sound mind and memory at the time of signing and acknowledging the same. Fourth: That the testator was 21 years of age, or that the testatrix was 18 years or more of age at that time ; that there was no fraud, compul- sion, undue influence or improper conduct w^hen the will was signed. The right to probate the will is not dependent upon 13— Anderson v. Irwin, 101 111. Vol. 3, pp. 4026, 4035; Vol. 4, pp. 413. The latter case establishes a 1284, 1286; Vol. 5, p. 576, and cases lost will by the evidence of one cited by the authors in each vol- witness in a Court of Chancery, ume; Kurd's R. S. of 111., 1905, pp. See Starr & Curtis' Annotated 2050, 2051. Statutes of Illinois, with Jones & 14 — More v. More, 211 111. 271, Addington's Supplements thereto, and cases reviewed in that opinion. PROBATING WILLS. 71 the belief of the attesting witnesses formed after their attesta- tion. The will, the certificates and the oath of the subscribing witnesses, make a prima facie case.^^ It is also proper to show all that transpired at the time of the execution of the will; the acts and declarations of the parties participating are admis- sible as of the res gestae}^ No collateral attack can be made, however, upon an order admitting a will to probate,^''' But it is held improper to put the following interrogatories to a subscribing witness, viz. : Whether he would have signed the instrument except in the presence of the testatrix; and, whether all the things mentioned in the attestation clause were complied with? Such interrogatories and answers should be suppressed.i^ 118. Wills to remain with clerk — copies evidence. Section 18 of the act relating to wills provides: "All original wills, together with the probate thereof, shall remain in the office of the clerk of the county court of the proper county; and copies of the record of the same, and copies of the exemplifica- tion of foreign wills recorded in said office as in this act pro- vided, duly certified under the hand of the clerk and the seal of said court, shall be evidence in any court of law or equity in this state.i^ 119. Foreign wills admitted to probate — effect of wills proven without the state. Section 9, chapter 148, of Wills pro- 15— Chapter 148, entitled Wills, v. Brown, 183 111. 46; Waugh v. Sec. 2, Kurd's R. S. of 111., 1905. Moan, 200 111. 298. See Authorities {Ante 116). No- 18— Green v. Hitchcock, 222 111. ble's Will, 124 111. 266; Canatsey v. 216. Canatsey, 130 111. 397; Gould v. 19— R. S. 1845, p. 540, Sec. 16. Theological Seminary, 189 111. 290; Bliss v. Seeley, 191 111. 471; Harri- Critz V. Pierce, 106 111. 167; Brice son v. Wetherby, ISO 111. 434; Starr V. Hall, 120 111. 597; Waugh v. & Curtis' Annotated Statutes of II- Moan, 200 111. 298. linois, with Jones & Addington's 16 — Cheney v. H. F. & F. Mis- Supplements thereto. Vol. 3, p. slonary Society, 28 111. App. 621. 4045; Vol. 5, p. 579, and cases cited 17 — Memorial Home v. Price, by the author in each volume; 195 111. 282; Keister v. Keister, 178 Kurd's R. S. of 111., 1905, same sec- Ill. 106; Chicago Title & Trust Co. tion and chapter, p. 2053. 72 THE LAW OF ESTATES. vides: "All Avills, testaments and codicils, or authenticated copies thereof, proven according to the laws of any of the United States, or the Territories thereof, or of any country out of the limits of the United States, and touching or concerning estate within this State, accompanied with the certificate of the proper officer or officers that said will, testament or codicil, or copy thereof was duly executed and proved, agreeable to the laws and usages of that state or country in which the same was executed, shall be recorded as aforesaid, and shall be good and available in law, in like manner as wills made and exe- cuted in this state." A certificate of probate in New York, held sufficient, and will admitted in evidence, though not filed in probate court, and not recorded in this state. ^o 120. Will to be recoirded — notice— certified copies evidence. Section 33, chapter 30, entitled "Conveyances," provides: "All original wills duly proved, or copies thereof duly certified, according to law, and exemplifications of the record of foreign wills made in pursuance of the law of congress in relation to records in foreign states, may be recorded in the same office where deeds and other instruments concerning real estate may be required to be recorded; and the same shall be notice from the date of filing the same for record as in other cases, and certified copies of the record thereof shall be evi- dence to the same extent as the certified copies of the records of deeds. "21 20 — Newman v. Willetts, 52 111. S. of Illinois, 1905, same sections 98; Shepard v. Carrill, 19 111. 313; and chapter, p. 2052. Gardner V. Ladue, 47 111. 21; Corri- 21 — Starr & Curtis' Annotated gan V. Jones, 14 Colo. 311; Sees. Statutes of Illinois, with Jones & 9, 10, Chapt 148 "Wills;" Starr & Addington's Supplements thereto. Curtis' Annotated Statutes of Illi- Vol. 1, p. 954, Vol. 4, p. 258, and nois, with Jones & Addington's cases cited in volumes noted. Supplements thereto. Vol. 3, pp. Kurd's R. S. of 111., 1905, same sec- 4040, 4041; Vol. 4, p. 1289, and tion and chapter, p. 470. cases cited in volumes; Kurd's R. PROBATING WILLS. 73 121. Authentication of foreign will. This must be as pre- scribed by act of congress, and approved agreeably to the laws of probate.22 122. Notice of foreign will. To persons acquiring interests adverse to devisees, is dependent upon observance of statutory formalities. It will not be notice unless authentication and certification is as provided by statute. The certificate to for- eign will should state, that it is duly executed and proved agreeable to laws of state of probate.-^ The words in section 9 of the statute of this state "shall be recorded as aforesaid," evi- dently refer to the recording by the clerk of the county court in a book to be provided by him, as stated in section 2 of the Stat- ute of Wills. On February 14, 1857, an act of the legislature was passed, which with slight changes and additions, appears now in the Revised Statutes as section 33 of the act in regard to conveyances, to-wit: "The same shall be notice from date of filing the same for record as in other cases," were intended to have some meaning. If "exemplifications of the record of foreign wills made in pursuance to the law of congress in rela- tion to records in foreign states," operate as notice from the date of filing the same for record in the recorder's office of a county in this state, then third persons, acquiring interests in land adverse to the devisees in such wills, cannot be said to have constructive notice of such wills when such exemplifica- tions are not so recorded.^* 123. Foreign wills admitted to probate. Section 10 of the act relating to wills, chapter 148, provides: "All wills, testa- ments and codicils, which heretofore have been, or shall here- after be made, executed and published out of this state may be admitted to probate in any county in this state in which the 22 — Harrison v. Wetherby, 180 Harrison v. Wetherby, ISO 111. 438. 111. 438; Bliss v. Seeley, 191 111. (Note. — In Bliss v. Seeley, supra, 473; Lewis v. Barnhart, 145 U. S. the statute of Illinois is construed 79. and applied, j 23 — Bliss V. Seeley, 191, 473; 24 — See Statute quoted and cited Lewis V. Barnhart, 145 U. S. 79; (Ante 120). 71 THE LAW OF ESTATES. testator may have been seized of lands, or other real estate, at the time of his death, in the same manner^ and upon like proof as if the same had been made, executed and published in this state, whether such will, testament or codicil has first been probated in the state, territory or country in which it was made and declared or not. And all original wills, or copies thereof, duly certified according to law, or exemplifications from the records in pursuance to the law of Congress in rela- tion to records in foreign states, may be recorded as aforesaid, and shall be good and available in law, the same as wills proved in such county court. "^^ 124. Place of probate. Section 11 of the act relating to wills provides: "If any testator or testatrix shall have a man- sion house or known place of residence, his or her will shall be proved in the county court of the county wherein such mansion house or place of residence shall be. If he or she has no place of residence, and lands be devised in his or her will, it shall be proved in the court of the county wherein the lands lie, or in one of them, where there shall be land in several different counties ; and if he or she have no such known place of residence, and there be no lands devised in such will, the same may be proved either in the county where the testator or testatrix shall have died, or that wherein his or her estate, or the greater part thereof, shall lie.^s 25— See "Conveyance Act, Chapt. 26— Starr & Curtis' Annotated 30. Sees. 33-35. (Ante 120 of this Statutes of Illinois, with Jones & worlc.) See also Starr & Curtis' Addington's Supplements thereto. Annotated Statutes of Illinois, Vol. 3, p. 4041, and cases cited; with Jones & Addington's Supple- Kurd's R. S. of 111., same section ments thereto. Vol. 3, p. 4040. and chapter, p. 2052; Wild v. Kurd's R. S. of 111., 1905, same sec- Sweeney, 84 111. 243. tions and chapt, p. 2052. CHAPTER VII CONTEST OF WILL Sec. 125. Will contested, statutory duty defined. 126. The statute construed. 127. Section seven, a grant of jurisdiction. 127a. Luther v. Luther. 128. Section construed to be a statute of repose. Sec. 129. Appeals from order allowing or refusing probate of will. 130. The practice in appeals. 131. The burden of proof. Prac- tice, evidence. 132. Concurrent and cumulative remedies are not forbidden. Sec. 125. Will contested. Section 7 of chapter 148, entitled "Wills," is as follows: "When any will, testament or codicil shall be exhibited in the county court for probate thereof as aforesaid, it shall be the duty of the court to receive the pro- bate of the same without delay and to grant letters testa- mentary thereon to the person or persons entitled, and to do all other needful acts to enable the parties concerned to make settlement of the estate at as early day as shall be consistent with the right of the respective persons interested therein: Provided, however, that if any person interested shall, within one (1) year after the probate of any such will, testament or co- dicil in the county court as aforesaid, appear and by his or her bill in chancery contest the validity of the same, an issue at law shall be made up whether the writing produced be the will of the testator or testatrix or not, which shall be tried by a jury in the circuit court of the county wherein such will, testament or codicil shall have been proven and recorded as aforesaid, according to the practice in courts of chancery in similar cases ; but if no such person shall appear within the time aforesaid, the probate shall be forever binding and conclusive on all of the parties concerned, saving to infants or non compos mentis the like period after the removal of their respective disabilities. 75 76 THE LAW OF ESTATES. And in all such trials by a jury as aforesaid the certificate of the oath of the witnesses at the time of the first probate, shall be admitted as evidence and to have such weight as the jury shall think it may deserve. "^ This statute compared with former statute, is changed in punctuation slightly; also the words "rights" to "right," the singular being now used. The material change, however, is that the present statute provides that a bill in chancery to con- test must be filed in one year instead of two as formerly. 126. The statute construed. It was settled in People v. Knickerbocker,- as applied to the court of probate, that the probate of a will is a judicial act, and that the words "without delay" does not require the probate court to proceed immediately, but without unnecessary delay to grant letters testamentary. In McDonald v. White,^ the terms "par- ties interested" mean those upon whom the law imposes the duty of settling the estate, and the words "interested therein" mean those interested in the settlement of the estate, that is, those who will be directly affected, in a pecuniary sense, by its settlement ; and the words, ' ' any person interested, ' ' can only mean one of the same class of persons. The interest must be a direct pecuniary interest affected by the probate of the will, for the reference is to an existing interest, and not to an interest which may be subsequently acquired, since, in that event, the language would have been, "or any one who shall within (one) year, be interested, and appear, and by his or her bill in chancery," etc. That this is the correct meaning of 1 — As amended by laws of 1903, inclusive, and cases cited; Kurd's p. 355. Approved May 15, 1903. In R. S. of 111., 1905, same section and force July 1, 1903. See Starr & chapter, pp. 2051. 2052. See also Curtis' Annotated Statutes of Illi- the following cases, construing nois, with Jones & Addington's and applying the statute in ques- Supplements thereto. Vol. 3, pp. tion: Davis v. Upson, 209 111. 206; 4035 to 4039, and cases cited; Vol. Sharp v. Sharp, 213 111. 332; Da- 4, pp. 1286 to 1289 inclusive, and vidson v. Redden, 214 111. 61. cases cited; Vol. 5, pp. 576 to 578 2—114 111. 539. 3—130 111. 493. CONTEST OF WILL. 77 the words is further manifested by reference to section 14 of the same chapter, where it is provided that "appeals may be taken from the order of the county court, allowing or disallow- ing any will to probate, to the circuit court of the same county, ' ' by any person interested "in such will, in the same manner as appeals may be taken from justices of the peace, etc.," and precisely the same reasons exist why the legislature should restrict the right of contest under section 7, as the right of appeal under section 14." The time fixed in the statute for filing bill to contest will is held to be jurisdictional ; and the probate of a will is not com- plete while an appeal from the order admitting or refusing a will to probate is pending.^ 127. Section 7 construed a grant of jurisdiction. The sev- enth section of the statute of wills, allowing the contest of wills by bill in chancery at any time (fixed by the statute) after their probate, is held upon construction not to be a stat- ute of limitation, but a mere grant of jurisdiction, to be exer- cised only in case it is invoked within the time prescribed by the statute. Jurisdiction conferred extends to an investiga- tion of every ground upon which the validity of the will may be assailed. Courts of equity in the state of Illinois have no jurisdiction to contest a will or impeach a judgment of pro- bate, except such jurisdiction has been conferred by statute.^ 4— O'Brien v. Bonfield, 220 111. amended May 15, 1903, will give 219. the legislative enactments as to 5— Ryhner v. Frank, 105 111. 326 Luther v. Luther, 122 111. 558 Spaulding v. White, 173 111. 130 Wheeler v. Wheeler, 134 111. 522 McNulta V. Lockridge, 137 111. 270 Jele V. Lemberger, 163 111. 338 Wright V. Simpson, 200 111. 63 the section of the statute in ques- tion. The section of the statute as originally passed was taken from the Kentucky Statute founded up- on the early Virginia Statute; therefore since 1829, this section of the statute (now known as sec- Chicago Title & Trust Co. v. Brown, tion 7 of the Act relating to 183 111. 42. This statute first passed "Wills"), has been the law of Illi- in 1829. (Laws of 1829, p. 193, nois. The amendments being but Sec. 5, Statutes of 1845, Chapt. 109, slight and not affecting the gen- Sec. 6; Statutes of 1872, Chapt. 148, eral terms of the law. See Rigg Sec. 7; amended April 11, 1895; v. Wilton, 13 111. 15; Will v. Will, 78 THE LAW OF ESTATES. Under the rule of construction applying to a statute of another state, made a part of our laws, this section and the amendments thereto have often been construed. And the construction given is that placed upon the law by the courts of the state from which the statute was taken.® 127a. In Luther v. Luther,'^ Mr. Justice Magruder, in a very able and elaborate opinion construing this section of the statute, says: "In England the probate of wills of personal property was exclusively vested in the ecclesiastical courts. There were two modes of probate, one ex parte, the other inter partes. One was proof of the will *'in common form"; the other was proof thereof *'in solemn form" or "per testes.'' When a will was proven "in common form," it was taken before the judge of the proper court of probate, and the executor produced witnesses to prove it to be a will of the deceased, without citing or giving notice to the parties inter- ested ; it was admitted to probate in the absence of such parties. When, however, a will was proven "in solemn form," it was done upon petition of the proponent for a hearing, and all such persons as had an interest, such as the widow, heirs, next of kin, etc., were notified and cited to be present at the probat- ing of the testament; interrogatories were propounded to the witnesses by those producing the will and by the adverse party. The executor of the will, proved "in common form," might at any time within thirty years be compelled by a person, hav- ing an interest, to prove it per testes ' ' in solemn form. ' '^ In Eng- 5 Litt. (Ky.) 273; 12 Henning's Streeter v. People, 69 111. 597; Virginia Statutes at Large, p. 142, Gage v. Smith, 79 111. 219; Martin pp. 454, 455; 1 Little's Laws of v. Judd, 81 111. 488; Hopkins v. Kentucky, p. 611, Sec. 293 and Medley, 97 111. 402; Luther v. Lu- notes. For complete history of ther, 122 111. 558. statutes in question see Luther v. 7 — 122 111. 558. Luther, 122 111. 558, and its appli- 8 — 1 Williams on Executors (6th cation. Trust Co. v. Brown, 183 111. Am. Ed.), foot pp. 325, 333, 334 42; O'Brien v. Bonfield, 220 111. Waters v. Stickney, 12 Allen 1 219. Redmond v. Collins, 4 Dev. 430 6 — Campbell v. Quinn, 3 Scam. Etheridge v. Corbrew, 3 Jones 14. (111.) 288; Ring v. Wilton, 13 111. iVofe.— The following cases, in 15; Grattan v. Grattan, 18 111. 162; addition to those above cited, show CONTEST OF WILL. 79 land there was no court for the probate of wills of realty. The validity of the will was decided incidentally in controversies con- cerning rights of property claimed under or against it. These controversies were settled in the appropriate jurisdiction. The title of the heirs was in its nature legal, and might be asserted in an action of ejectment. The statute of Virginia, upon which our own and that of Kentucky are based, provided for the probate *'in common form" or ex parte of will of both personalty and realty, and also extended the privilege of requiring a re-probate "in solemn form" to wills of realty as well as those of person- alty. Such re-probate was to be asked within five years instead of three years (under the act of 1872, in force in Illinois at the time of this opinion). Those to be cited were the persons inter- ested in sustaining rather than those interested in setting aside the will. The contest was to be decided in a court of chancery through the instrumentality of a jury rather than in the original court of probate. The words of section 7 of our act in regard to wills: "When any will, etc., shall be exhibited in the county court for probate, as aforesaid^ it shall be the duty of the county court to receive probate of the same without delay," refers back to section 2 of the act. Section 2 provides for the ex parte proof of wills on the testi- mony of the attesting witnesses, which is analogous to the probate in England "in common form." The subsequent pro- ceedings by bill in equity, imder section 7, to contest the valid- ity of the will, is analogous to the probate "in solemn form" by the executor upon being cited in by the next of kin. Both the American Courts retain the 13 Ga. 171; Kinnard v. Riddle- practice of the English court in re- hoover, 3 Rich. (S. C.) 258; Noyes quiring probate and re-probate in v. Barber, 4 N. H. 406; George v. common form and solemn form. George, 47 id. 44; Wall v. Wall, 30 Colier V. Idley, 1 Bradf. 94; Camp- Miss. 91; Hamberlin v. Terry, 7 hell V. Logan, 2 id. 90; Proctor v. Howe (Miss.) 148; Cowden v. Dob- Wanamaker, 1 Barb. Ch. 302; Gib- bins, 5 S. & M. 82; Martin v. Per- son V. Lane, 9 Yerg (Tenn.) 475; kins, 56 Miss. 204; Tucker v. Townsend v. Townsend, 4 Coldw. Whitehead, 58 id. 762; Barksdale (Tenn.) 70; Brown v. Anderson, v. Hopkins, 23 Ga. 332; Hubbard v. Hubbard, 7 Ore. 42. 80 THE LAW OF ESTATES. stages of the proceedings, however, differ from the former English probate in that they extend to the real estate as weH as the personal property.^ 128. Section 7 is construed to be a statute of repose. In the case of Chicago Title and Trust Co. v. Brown,^^ a petition was filed in the probate court, seeking to set aside the probate of a will in that court seven and one-half years after the same was admitted to probate. On page 50 of the opinion, speaking of the exercise of equitable jurisdiction by probate courts, say: "Conceding this to be true, and treating the proceed- ing instituted by appellees as a proceeding in the probate court in chancery, it cannot be sustained, because the jurisdiction of the court was not invoked within the time prescribed by the statute. If the probate court is clothed with equitable jurisdic- tion in a case of this character, that jurisdiction must be exer- cised in the same way and within the same time that the cir- cuit court might entertain a bill had one been filed in that court," page 51. The act confers jurisdiction on a court of equity, provided the aid of the court shall be invoked within a specified time. "While the act is one conferring jurisdiction, yet it may also be regarded as a statute of repose." In view of the large quantity of real estate transmitted annually by will, it is a question of great public importance whether the probate of a will shall remain open for contest (three years) as provided by the statute, or whether the time shall remain at the option of the party who may seek to institute proceed- ings to contest. Doubtless the importance of the question was duly appreciated and considered by the legislature, as the 9— McArthur v. Scott, 113 U. S. Gratt. 18; Connolly v. Connolly, 32 340. id. 657; Rogers v. Thomas, 1 B. 10—183 111. 46. Section 7 of the Mon. 390; Bradford v. Andrews, 20 Illinois Act, has been construed Ohio St. 208; Mears v. Mears, 15 a statute of limitations. Heirs of id. 96; McArthur v. Scott, 113 U. S. Critz V. Pierce, 106 111. 167; Brown 340; Noyes v. Barker, 4 N. H. 406, V. Riggin, 94 id. 560; Well's Will, also construed a grant of jurisdic- 5 Litt. 273; Coalters v. Bryan, 1 tion (ante 127), and cases there cited. CONTEST OF WILL. 81 time within which a contest might be instituted by bill was first five years, then reduced to three, then to two, and now to one year.^^ 129. Appeals from the order allowing or refusing probate of will. Section 13, chapter 148, entitled ''Wills," provides: "That when the probate of a will shall have been refused and an appeal shall have been taken from the order or decision of the court, refusing to admit such will to probate, into the cir- cuit court, etc., the party seeking probate of the will may sup- port the same, on hearing in the circuit court, by any evidence competent to establish a will in chancery ; and in case probate is allowed, the will shall be admitted to probate, liable, how- ever, to be subsequently contested, as provided in case of wills admitted to probate in the first instance, "^^ Under section 14 of the act entitled wills, authorizing ap- peals to be taken from the order of the county court, allowing or disallowing any will to probate, into the circuit court, of the same county, by any person interested in the will, in the same time and manner as appeals may be taken from justices of the peace, except that the appeal bond and security may be ap- proved by the clerk of the county court; and the trial of such appeal shall be de novo}^ 130. The practice in appeals. It is the practice to try ap- peals under both sections of the statute cited, by jury.^'* But 11 — And affirming the opinion in R. S. of III,, 1905, same section Chicago Title & Trust Co, v, and chapter, p. 2053, See, also Brown, 183 111, 46; Davis v. Up- O'Brien v, Bonfield, 220 111. 219. son, 209 111. 206; Sharp v. Sharp, 13— Starr & Curtis' Annotated 213 111, 332; O'Brien v. Bonfield, Statutes of Illinois, with Jones & 220 111. 219. Addington's Supplements thereto, 12— Starr & Curtis' Annotated Vol. 3, p. 4043; Vol. 4, p. 1290; Vol. Statutes of Illinois, with Jones & 5, p. 579, and cases cited in each Addington's Supplements thereto, volume under section in question; Vol. 3. pp. 4042, 4043; Vol. 4, pp. see also Kurd's R. S. of III., 1905. 1289, 1290; Vol. 5, pp. 578, 579, and p. 2053, same statute, chapter 79, cases cited in foot notes to section par. 115, p. 1286. of statute in each volume; Kurd's 14 — Walker v. Walker, 2 Scam. 6 82 THE LAW OF ESTATES. by consent circuit court instead of trying case de novo may try case on record of evidence heard in probate court.^^ Probate of will is not complete while appeal is pending.!^ 131. The burden of proof is on the party affirming the validity of the will, he having the right to open and close the case.i 7 On appeal to circuit court from order admitting will to pro- bate, it is proper in circuit court to exclude all evidence of execution of will and sanity of testator, except testimony of subscribing witnesses to will.^^ An appeal from a judgment ad- mitting a will to probate does not broaden the inquiry, so as to entitle a party to try question of sanity and undue influence be- fore a jury; if a party so interested desires to broaden the in- quiry and challenge the mental capacity of the testator to exe- cute the instrument, or show he was unduly or improperly influenced to execute it, and to have such question tried by a jury he must resort to a bill in chancery.^ ^ A clear prepon- derance is essential to reverse a judgment admitting a will to probate.2o The appeal must be taken within the time prescribed by statute.2i The person interested alone has the right of ap- peal, and he must be one having a vested as distinguished from a contingent interest.22 On appeal to circuit court refusing probate of will under section 13, aforesaid, appellant may prove execution of will and sanity of testator by any legitimate evidence ; such appel- (111.) 291; Schenck v. Schenck, 80 256; Crowley v. Crowley, 80 111. 111. App. 617; White Memorial 469; Heirs of Critz v. Pierce, 106 Home V. Price, 195 111. 282. 111. 167; Brice v. Hall, 120 111. 597; 15— Doran v. Mullen, 78 111. 342. Thompson v. Owen, 174 111. 232. 16 — O'Brien v. Bonfield, 220 111. 19 — Clausennius v. Clausennius, 219. 179 111. 545. 17— Brooks v. Barrett, 17 Pick. 20— 7n re Estate of Kohley, 200 94; Potter v. Potter, 41 111. 801; 111. 195. Hollaway v. Galloway, 51 111. 159; 21 — Wright v. Simpson, 200 111. Tayor v. Cox, 153 111. 22; Bevelotv. 63. Lester, 153 111. 625 ; In re Estate of 22 — People v. McCormick, 201 111. Kohley, 200 111. 192. 313. 18 — Anderson v. Black, 43 111. CONTEST OF WILL. 83 lant is not limited to testimony of attesting witnesses.^^ Attes- tation clause by witness is competent upon appeal from order refusing probate, in connection with testimony of such, witness. And the impeachment of attesting witness by proponent, is com- petent.24 On appeal admitting will to probate, the contestants may in- troduce any competent evidence for the purpose of invalidating the willj upon the ground of fraud or other improper conduct ; but the fact that the testatrix was in a comatose condition at the time it is claimed she signed the will cannot be shown by witnesses other than the subscribing witnesses upon an appeal admitting will to probate.^^ 132. Concurrent and cumulative remedies are not forbidden. In Wright v. Simpson-^ it is said: Appellee was not precluded from filing her petition to set aside the order probat- ing the will by the fact, that theretofore on May 1, 1901, she had filed a bill in chancery to set aside the probate of the will. ''Concurrent and cumulative remedies are not forbidden.^^ The pendency of the bill in chancery to set aside the probate of the will does not operate to abate this petition to the county court to set aside such probate. If the petition to set aside the probate fails, then the case begun by the filing of the bill in chancery may proceed. If, however, the proceeding by petition to set aside the probate of the will succeeds, the proceeding by bill in chancery is unnecessary. The proceedings by petition to set aside the probate is addressed to the county court, and has reference to the execution of the will, w'hich is a matter for the determination of the court. The proceedings by bill in chan- cery is addressed to the circuit court, and requires, under the 23 — Heirs of Critz \. Pierce, 106 24— Thompson v. Owen, 174 111. 111. 167; Thompson v. Owen, 174 111. 241. 232; Masonic Orphans' Home v. 25 — Stuke v. Glacer, 223 111. 316. Gracy, 190 111. 97; Gould v. Chica- 26—200 111. 63. go Theological Seminary, 189 111. 27 — 8 Am. & Eng. Ency, of Law, 285; In re Estate of Kohley, 200 1st ed. p. 549, and cases cited. 111. 195; In re Tobin, 196 111. 488; Wright v. Simpson, 200 111. 63. In re Robinson Will, 190 111. 95. 84 THE LAW OF ESTATES. statute, the empaneling of a jury for the purpose of trying an issue of fact. The proceedings in the county court to set aside the probate of the will under the act of 1897 is to a large extent a proceeding in rem, while the proceeding by bill in chancery in the circuit court, calling for the intervention of a jury upon a question of fact, partakes of the nature of a proceeding in personam. It is well settled that proceedings in rem and in personam to collect the same demand, or to accomplish the same object, do not necessarily interfere, until satisfaction is obtained or the object secured in one of such proceedings.^^ It is, moreover, a well settled principle of law that "in construing a remedial statute its language, so far as is consistent with a fair construction of the law, should be so interpreted as to pro- mote and advance the remedy. * ' The act of 1897 above set forth is a remedial statute. 29 28 — Am. & Eng. Ency. of Law, 29 — McNulta v. Lockridge, 137 1st ed. p. 549, and cases cited. 111. 270. CHAPTER VIII CONSTRUCTION OF WILLS Sec. 133. Powers of disposition and limitations thereon. 134. Particular words construed. 135. The rule governing the mean- ing of words. 136. What estate conveyed; words of inheritance; quantity of interest. 137. Walker v. Pritchard. 138. The rule in such case. 139. Bibbens v. Potter. 140. West V. Fitz; Giles v. Ans- low. 141. If the instrument be doubt- ful, precatory words will Sec. not be construed into a declaration of trust. 142. The doctrine in respect of the creation of trusts. 143. Devise of land held in se- curity of a debt. 144. Estates tail. 145. Devises to a class. 146. Mather v. Mather. 147. Cheney v. Teese. 148. McCartney v. Osburn. 149. Widow's renunciation and election. 150. Widow of illegitimate given whole of estate. Sec. 133. Power of disposition and limitation thereon. The laws in force at the date of the execution of a will may be con- sidered in determining the intention of the testator ; while laws in force at testator's death controls rights of parties.^ The power to devise by will may be enlarged or curtailed by the legisla- ture.2 It has been decided, that on bill for partition and for construction of will, calling for division among devisees, a decree in such partition proceedings, fixing all rights, is a sufficient construction of a will.3 The statutory award to widow or chil- 1 — Carpenter v. Browning, 98 111. 282. 2— Emmert v. Hayes, 89 111. 11. 3— Cowdry v. Hitchcock, 103 111. 262. See also sections 74, 76, 77, chapter 3. "Administration Act," Starr & Curtis' Annotated Statutes of Illinois, with Jones & Adding- ton's Supplements theretb, Vol. 1, pp. 310, 311, 313, and cases cited; Vol. 4, pp. 38, 39, and cases cited; Vol. 5, p. 19, and cases cited. See also sections 10, 12, chapters 41, "Dower Act," Starr & Curtis' An- notated Statutes of Illinois, with Jones & Addington's Supplements thereto. Vol. 2, pp. 1456 to 1462, and cases cited; Vol. 2, pp. 1464 to 1467, and cases cited; Vol. 4, pp. 446, 447, and cases cited; Vol. 5, p. 85 86 TPIE LAW OF ESTATES. dren is a limitation upon power of disposition by will. Right of dower, and right of surviving wife, and estate of homestead is statutory limitation upon testator's power over his land in favor of surviving wife and children. Under statute testator may dis- pose of his property by will as he chooses, and select the objects of his bounty, provided always, in so doing, he contravenes no well recognized and admitted principle of public policy, or rule of clear right.* Express words of limitation are not necessary to create a less estate than a fee; and upon construction of a will, such limitation may appear by necessary implication.^ 134. Particular words construed. "Or" construed "and" where the devise was, "should one or both die before they should arrive at the age of twenty-one, or either die without heirs, his or their share shall be equally divided with my chil- dren, and the surviving one of the two grandchildren, if any;" because the estate does not go over to the ulterior devisee, unless both the specified events happen; and this rule is ap- plicable to real and personal estate.^ In a bequest using word "fee," but making bequest over on death of donee, the word as used in the will, held, to give life estate.''' "Heirs" and "heirs at law," these words are construed in primary sense, unless context shows intention to use words in different sense.^ The word "heir" was construed "child" to carry out intention of testator.^ In Beacroft v. Strawn, where the devise or conveyance is to a person and the children of his body, the words are not technical and the word "children" is not one of limitation but of purchase, and creates a remainder. The word "chil- dren" is primarilv. a word of purchase and is not to be con- 180, and cases cited. See also sec- 566; Hamlin v. United States Ex- tions 1, 2, chapter 52, "Exemption press Co., 107 111. 443. Act," Starr & Curtis', etc.. Vol. 2, 6— Kindig v. Deardorff, 39 111. pp. 1865 to 1873, and cases cited; 300. Vol. 4, pp. 614, 615, and cases cited; 7— Hatfield v. Fowler, 60 111. 45. Vol. 5, p. 257, and cases cited. 8— Richards v. Miller, 62 111. 417; 4— Emmert v. Hayes, 89 111. 11. Bland v. Bland, 103 111. 11; Fish- 5 — Morrison v. Schorr, 197 111. back v. Joesting, 183 111. 416. 9—67 111. 28. CONSTRUCTION OF WILLS. 87 Btrued as equivalent to "heirs" in the absence of other words or circumstances showing it to have been used in that sense.^** In Bidgeway v. Underwood,^^ the words "inheriting" and "inheritance" construed, referring to the same thing — the distributive share of the proceeds arising from the sale of the land. In Duryea v. Duryea,^^ in general, word "survivor" will be construed in its natural sense, but to carry out testa- tor's intention it will be read as synonymous with the word "other." The word "survive" may mean to continue to live beyond a specified period, event or condition.^' In Mather v. Mather, '^'^ a devise of "net income" of realty and personalty to children for life, held, to require executors to retain management. In Kennedy v. Kennedy, ^^ a devise of "homestead" held, to mean devise of farm on which testator lived, and not statutory estate of homestead. In McCarthy v. Oshurn,'^^ the testator used the words, "heirs of H, " meant simply the children of H "living at the time of said division," in connection with the words "heirs of H." In Kelley v. Vigas,^'^ a devise was made to a class of persons named, only "heirs at law" of testator; held, it was necessary to refer to the statute to ascertain who constitute the class, and the statutes providing the quantity each shall take must also govern; in such case property devised will be divided among heirs as in case of intestacy. In Arnold v. Alden,^^ it is held, when the word "issue" in one part of a limitation is explained by the word "children" in another, it will be inferred that the testator intended the word "issue" to denote children. It is only where the word "issue" is not qualified or explained, that it is con- strued to include grandchildren as well as children. But the 10— Strawbridge v. Strawbridge, 14—103 111. 607. 220 III. 61. 15—105 111. 350. 11—67 111. 419. 16—118 111. 403. 12—85 111. 41. 17—112 111. 242. 13— Gary v. Stead, 220 111. 508. 18—173 111. 239. 88 THE LAW OF ESTATES. word "children" is never meant where the word "heirs" ap- plies in its technical sense.^^ In Rose v. Eale,^^ the words "give devise and bequeath," which precede the description of the real estate, refer to both real estate and personalty, as do also the words "whilst she remains my widow;" pass a life estate in both real and per- sonalty, "whilst she remains my widow." In Lancaster v. Lancaster, ^'^ the words "I give and bequeath to the legal and direct descendants — the heirs of their bodies begotten and their heirs — of my eldest brother and his wife," construed as though phrase, "that is to say" had followed word "descendants." In Thomas v. Miller, ^^ the word "estate" was held, to be broad enough to pass fee, but it must not be considered as doing 60 generally. In Ingraham v. Ingraham,-^ the words, * * I author- ize, " used in connection with absolute gift, implies creation of trust. In Gannon v. Paterson,^* several clauses of the will were construed making use of the words, "heirs," "issue" and "children" indiscriminately, giving such words the com- mon and popular meaning instead of their strict and legal meaning. The court holding, when such use of those words is made by the testator the court is warranted in reading them interchangeably, so as to give the will such construction as will best comport with the intention of the testator as drawn from the entire instrument. In Blakeslee v. Mans field, "^^ the words "per cent" held, to mean parts or shares as distinguished from its ordinary mean- ing, to wit, "by the hundred." In Fisher v. Fishbank,^^ the word "rest" construed "the 19— Davis V. Sturgeon, 198 111. proval, Butler v. Huestis, 68 111. B22. 594; Summers v. Smith, 127 111. 20—185 111. 382. 645; Strawn v. Sweeny, 163 111. 21—187 111. 544. COS; Carpenter v. Van Orlinder, 22—161 111. 67. 127 111. 42. 23—169 111. 470. 25—66 111. App. 119. 24—193 111. 375, citing, with ap- 26—188 111. 194. CONSTRUCTION OF WILLS. 89 estate remaining." In Johnson v. Askey,'^'^ the words, "revert back" held equivalent to "shall go to." In Stickel v. Crcme,^^ the words, "undisposed of" eonstinied to mean "residue." In Glover v. Condell,^^ the words "without living heirs of their body" imports definite failure of issue; and the words "without leaving issue," in Metzen v. Schopp,^^ are held, to apply to the time of the death of the devisee, and not to the time of the death of the testator. 135. The rule g-oveming the meaning of words has been laid down by both Wigram and Redfield in their work on wills ; the courts of Illinois have followed the rules in this par- ticular laid down by these authors, viz. : "A testator is always presumed to use the words in which' he expresses himself, ac- cording to their strict and primary acceptation, unless, from the context of the will, it appears he has used them in a dif- ferent sense, in which case the sense in which he thus appears to have used them will be the sense in which they are to be construed.3^ 136. What estate conveyed, words of inheritance, quan- tity or interest. The Statutes of this State, Section 13, Chap- ter 30, entitled "Conveyance" is the law passed in 1874, and now in force. It provides that, "every estate in lands which shall be granted, conveyed or devised, although other words heretofore necessary to transfer an estate of inheritance be not added, shall be deemed a fee simple estate of inheritance, if a less estate be not limited by express words, or do not appear to have been granted, conveyed or devised by construction or operation of law."^^ The words used in the instrument 27 — 190 111. 62. Statutes of Illinois, with Jones & 28 — 189 111. 218. Addington's Supplements thereto, 29—163 111. 585. Vol. 1, p. 925, and authorities cit- 30—202 111. 286. ed; Vol. 4, p. 255, and authorities 31 — Rawson v. Rawson, 52 111. cited; Vol. 5, p. 116, and authori- 63; Richards v. Miller, 62 111. 419. ties cited. Kurd's R. S. of III., 32 — Starr & Curtis Annotated 1905, same section and chapter, p. 466. 90 THE LAW OF ESTATES. as in a will, must determine whether the fee is granted or not; and this is always a question for the court when construing the language to give effect there- to. Before the passing of this statute, it was the law of Illi- nois, that in a grant or conveyance, or devise, the word "heirs," or an equivalent word, was necessary to transmit the inheri- tance; and, by the omission of such a word a life estate only was created. Now if such word be omitted the fee passes to the grantee and is transmissible to his heirs, if a less estate is not limited by express words, or do not appear to have been granted, conveyed, or devised, by construction or operation of law. Thus it has been held, in Baker v. Sc&ttp that this section does not abolish the rule in Shelly 's case in this State, for had the legislature designed to abolish that rule they would have done so in express terms easily understood. The rule in Shelly 's case in force in this State, has been ac- knowledged as a rule of property by the common law, from the time of Edward II, over five hundred years. "While some of the states have abolished this rule, as applied to both deeds and wills, the courts of every State in the Union in which the common law has been adopted as in Illinois, retain that rule, and of course will enforce it until an act of the legislature shall abolish the same. It will be noted from a review of the authorities the question arises what words are necessary to carry the fee in real estate? Particularly, this is so where the language of a will is to be given its meaning and effect pertaining to a grant of land by such instrument. We there- fore, give the reader some of the cases construed by our court of last resort indicating the quantity of interest passing under the language of the wills construed. 137. In Walker v. Pritchard,^* a testator devised certain lands to his vsdfe, giving her full power and au- thority to sell and convey the title thereof at any time and convert the avails to her own use and benefit, and his will 33—62 111. 86. 34—121 111. 221. CONSTRUCTION OF WILLS. 91 thus proceeds: "I further bequeath during her natural life- time one span of horses, and all other items not otherwise dis- IX)sed of, during her natural life as aforesaid," and at her death, "all the property hereby devised or bequeathed to her as aforesaid, or so much thereof as may remain unexpended, to my sons (naming them), and to their heirs and assigns for- ever:" Held, that the widow took only a life estate, with a power of disposition, and that the sons took the remainder, or such part as remained undisposed of at her death and could be identified. A power of sale superadded to a life estate does not enlarge it to a fee. At common law a devise of land without declaring the estate therein, gave only a life estate ; but our statute has changed this rule, so that a fee simple title shall be intended if a less estate be not limited by express words, or do not appear to have been granted, conveyed or devised, by construction or operation of law. In the absence of limiting or qualifying words, a devise of land will vest the fee ; but with such words the will is to be construed with reference te giving effect to the intention of the testator, as manifested by the entire instrument, which is all to be considered together. The burden under the statute, lies on him who contends for the restricted construction of the devise. 138. The rule in Shelly 's Case. Theobold on Wills, page 484, says: "As a rule, when there is a gift to A, indefinitely, followed by a gift at his decease, A will take only a life inter- est." The application of the rule will be found in the follow- ing cases in which the rule was applied : Walker v. Pritchardf supra, citing case of Constable v. Bull, 3 DeG and S, 41 ; and giving words of will: "I give, devise and bequeath unto my dear wife, Mary Ann Constable, all and every my estate and effects, goods, chattels, house, lands, moneys, etc., and where- soever the same may be at the time of my decease, for her sole, separate use and benefit. I further give, will and direct, that at the decease of my said wife, whatever remains of my said estate and effects shall go to and be equally divided, share and share alike, between the following persons hereinafter 92 THE LAW OF ESTATES. named," etc. It was held, that this will gave only a life estate to the widow, 139. In the ease of Bibbins v. Potter,^^ Emily Bib- bins by her will, gave her sister, Ann Maria Bibbins, "all her estates and effects, both real and personal," for her own use and benefit, absolutely. By a cod- icil, made afterwards, and directed to be taken as a part of her will, she added: "After the death of my sister, Ann Maria Bibbins, I give, devise and bequeath all propertj^ of mine which may then be remaining, to," etc. Held, that construing the will and codicil together, the gift to Ann Maria was cut down to a life estate. Under rule in Shelly 's case, a devise of the testator's prop- erty to his wife, "to hold and to have to her, my said wife, and to her heirs and assigns forever, but if she gets married again, then at the time of her second marriage one-half of said estate, real and personal, to be sold and divided as fol- lows, etc.," passes a fee to the widow, notwithstanding a sub- sequent clause attempts to limit her interest to a life estate. Held: It is not essential to the application of the rule in Shelly 's case, that the will shall in express language create a freehold estate in the ancestor, since the application of the rule does not depend upon the quantity of the estate given to the ancestor but upon the estate devised to the heirs. Rissman V. Wierth,^^ reviews previous cases supporting conclusions in case cited. Again, where a will provided, that real estate devised to the husband of the testatrix shall, after the husband's death, re- vert to the heirs of the testatrix, "but only after payment by them" to the husband's heirs for improvements on the land, passes only a life estate to the husband, and not a fee, and Buch does not create a perpetuity, since "heirs of the testa- 35 — 10 Law Reporter, Ch. Div., reviews former cases. See also, in 733. this connection, and applicable, 36—220 111. 181, pp. 185 to 187, Johnson v. Buck, 220 111. 226; Gary V. Stead, 220 III. 508. CONSTRUCTION OF WILLS. 93 trix" means those living at her death, and payment by them for improvements on land thus devised must be made in the lifetime of the "heirs of the testatrix, "^^ 140. The case Giles v. Anslow,^^ a clause of the will was as follows: *'I have full faith and confidence in my be- loved wife, Mary, that she will do what is best and proper with my effects, and that she would do with my property the same as I would wish to have done, — that she will take care of the proceeds. ' ' In the reasoning of the court this question is put, and answered by the court. For whose benefit did he expect her to manage the estate and take care of the proceeds of the property? Manifestly for her own benefit, and to guard against improvidence and consequent destitution and want. There is not the slightest intimation that such care was to be exercised in the interest of any other beneficiary. No provi- sion is made in favor of the nephews or any other person, after the estate should have vested in the widow. The clause last quoted of the will is immediately followed by the words : ' ' She is, by this gift, free from all restraint to do as may seem to her best and proper." The testator had previously left her "free from all restraint" in the discharge of her duties as executrix of his will. She was to be free from all restraint in the settlement of the estate, and she was left free from all restraint to do with the subject of the "gift" as might in her discretion, seem best and proper. No desire or even recom- mendation is expressed that she should make any disposition of any part of the proceeds of the estate to or for the nephews, or to any other person or use, or the expression of a desire that they should have a claim on her bounty or generosity. (Theo- bold on Laws of Wills, 380 and cases cited), lays down the following rule: "When there is an absolute power of disposal, with the confidence expressed that the donee will dispose of the property according to the testator's wishes, where none are expressed, there is no trust." There is no limitation ex- 37— Hill V. Gianelli, 221 111. 286. 38—128 III. 187. 94 THE LAW OF ESTATES. pressly creating a life estate in the wife of the testator. Nor is there a limitation over for the benefit of the nephews, either express or that arise by implication from the language em- ployed. By the first clause of the will, the absolute estate in the property is devised to the wife, and, apparently to pre- vent any mistake or misapprehension arising from the clause inserted in respect to the disposition of the estate upon her death before final settlement, she is, by that last clause, given absolute dominion and control over it. In other words, she was given the property absolutely and in fee, upon the hap- pening of the event of a settlement of the estate during her life, and then, upon the contingency of its vesting in her, she is left * ' unlimited and unfettered ' ' in the dominion, control and disposition of the estate.^^ 141. If the instrument be doubtful precatory words will not be construed into a declaration of trust. In Giles v. Anslow,'^^ the court citing from Theobold on the law of wills, p. 379, say: "Therefore mere expression of a desire that the donee will "be kind to,"^^ Baggins v. Yates,'^^ "remember," 39— See West v. Fitz, 109 111. Gary v. Stead, 220 111. 508; Hill v. 436, this case holding in reasoning Gianelli, 221 111. 286; Vannetta v. and conclusion, the same as Giles Carr, 223 111. 160; Wallace v. Bo- V. Anslow, 128 111. 187. zarth, 223 111. 339. 40 — The following cases constru- Note — We call attention to chap- ing wills, determine whether a life ter 50 of this work, "Reversions estate or a fee was intended by the and Remainders," as many of the testator, as interpreted under rules cases cited, in note 40, involve the applied to the language used in creation of remainders, and the le- the will. Boyd v. Strahan, 36 111. gal character of such as deter- 355; Mulberry v. Mulberry, 50 111. mined from the instrument con- 67; Bergan v. Cahill, 55 111. 160; strued. And further as to whether Markillie v. Ragland, 77 111. 98; possession of the remainder vests Johnson v. Johnson, 98 111. 564; immediately, or at the end of a Bland v. Bland, 103 111. 11; Hamlin term of years, or for life or fail for V. United States Express Co., 107 some legal reason determined in 111. 443; Lehndorf v. Cope, 120 111. each case. 330; Friedman v. Steiner, 107 111. 41—128 111. 195. 126; Rissman v. Wieth, 220 111. 42—9 Mo. 122; 8 Vin. Ab. PI. 27. 181; Johnson v. Buck, 220 111. 226; 43—9 Sim. 319. CONSTRUCTION OF WILLS. 95 Bardswell v. Banrdswell,'^* "consider," Sale v. Moore, "deal justly by," Pope V. Pope,'^^ "educate and provide for,"^^ Macnab v. "Wkitehread, Winch v. Bruttan,*'' Fox v. Fox,*^ "or do justice to," Ellis V. Ellis,*^ "a certain class of persons, will raise no trust." In the absence of words showing a contrary intent, a gift, whether of land or personal property, will be presumed to be absolute, and before it will be held to be in trust, it must be clear that the testator intended the property bequeathed, or some part of it, to be applied by the donee for the purpose of a trust; and this is to be determined, as before stated, from a consideration of the entire will, and the circumstances and conditions of the estate devised. So the fact that personal property was included in the devise to the wife, and was ex- pected by the testator to go with the real estate to her, may be considered as indicative of an intent to give her an abso- lute estate in land.^° 142. The doctrine in respect of the creation of trusts: Hawkins on Wills, page 381: "No trust will be implied from precatory words: (a) where the donee may at his discretion, apply the property to other purposes ;^i LeFray v. Flood, Cur- tis V. Bippon, Hoiose v. House, Ex parte Payne, (b) or where there is an express direction that the donee's absolute interest is not to be curtailed; Huskinson v. Bridge, ^^ Eaton v. Watts, (c) where the precatory words are stated not to be obligatory; Young v. Martin, Shepherd v. Nottidge, Cole v. Hawes,^^ (d) or where the donee is to take free and unfettered ;^^ Meredith v. Heneage, Hoy v. Martin, White v. Briggs. 44—1 Sim. 534. 51—4 Ir. ch. 1; 5 Mad. 434; 23 45—10 Sim. 1. W. R. 22; 2 Y. & C. Ex. 636. 52—15 Jur. 730; 1 Eq. 151. 46—17 B. 299. 47—14 Sim. 379. 48—27 B 301. S3— 2 Y. Y. C. C. 582; 2 J. & H. 49—23 W. R. *38. 766; 4 Ch. D. 238. 50— Hawkins on Wills, 131; Lei- 54—1 Sim. 542; 6 Sim. 568; 15 ter V. Shepard, 85 111. 243; Giles v. Sim. 33. Anslow, 128 111. 196. 96 THE LAW OF ESTATES. In Jarma/n on Wills, page 388, it is thus stated: **And when the words of a gift, expressly point to an absolute en- joyment by the donee himself, the natural construction of sub- sequent precatory words is, that they express the testator's belief or wish, without imposing a trust." In 2 Eedfield on Wills, 418, the rule is stated as follows: "It seems clear, that when the expression of request or desire in the will is ever so strong, it will not be construed to create a trust for others, when the will contains an expression that the devisee is, nevertheless, to be free to act in his own dis- cretion." In the case of Giles v. Anslow,^^ the court holds, that case clearly falls within the rules announced by the authorities cited, and the principal devisee, the wife of the testator, upon the settlement of the estate in question, took absolutely the property remaining. The court saying, "we are not justified in creating a limitation upon the devise to the wife, by con- struction; nor, in our opinion, does any such limitation arise by implication from the language of the will." 143. Devise of Land Held in Security of a Debt. In Stewart V. Fellows,^^ it is held: "If a party holding the legal title to land as a security for the payment of moneys advanced for the benefit of the real owner, devises the land, the devise will carry whatever right the devisor had therein, to his de- visee. ' ' The following facts appear of record in the case cited : A party taking the title to a lot as a security for the purchase money advanced, by his will bequeathed and devised the prop- erty to F; subject to the condition that in case one S (the debtor), should, within one year, pay to F, "such principal and interest as shall, at the time of such payment, be due me on an account now open between us, the principal sum and interest thereon, then I authorize and empower said F, to con- vey said realty to said S, and in said case, I give and bequeath to said F, such sum of money so paid," etc. The testator, in 55—128 111. 157. 56—128 111. 480. CONSTRUCTION OF WILLS. 97 his lifetime, made a deed of the property to the wife of S, and left it with his banker, to be delivered in case of his death. On bill to foreclose S's equity of redemption, the court admit- ted the will in evidence, holding the will was competent evi- dence to show complainant's title by the devise, and that it was also competent evidence as tending to sustain the conten- tion that the deed had not been delivered to the wife of S, and was not intended to be delivered except on payment of the open account. 144. Estates tail. The legislature of Illinois in passing Sec- tion 6, Chapter 30, of the Conveyance Act, obviously intended, to prevent the tying up of titles in perpetuity by entails. And also enable the grantor in making a conveyance or the testator by will, to say to whom the land in a deed or will made by him should go in remainder. Fee tail estates are under the statute life estates, when such is intended. Any words limit- ing to a certain line of heirs, will create an estate tail or life estate ; no special formula being necessary.^^ A deed to a tract of land to A, a married woman, * ' and her heirs by her present hus- band, B." Conveyed to her what would have been an estate tail by the common law, but under the statute noted, an estate for her life, only, with remainder in fee to her heirs by B, or those to whom the estate was immediately limited. The court hold- ing, the words "to her heirs by her present husband B, " meant, to the issue of her body by her then present husband begotten. So that her heirs, the issue of her body by B, take the remainder in fee simple on the death of the first grantee or donee.**^ 145. Devises to a class. It is a well settled rule in the con- struction of wills, that where there is a devise to a class of persons, as to the children or issue of A, and the estate is to 57— Lehndorf v. Cope, 122 III. Vol. 1, pp. 917, 918, and cases cited; 317. Vol. 4, p. 254, and cases cited; Vol. 58 — Starr & Curtis Annotated 5, p. 116, and cases cited. Kurd's Statutes of Illinois, with Jones & R. S. of 111., 1905, p. 464. Addington's Supplements thereto, 7 98 THE LAW OF ESTATES. come into possession of the devisees immediately upon the death of the testator, those persons of the class who are in being at the death of the testator will take the devise, to the exclusion of those thereafter born. But if the will carves out a particular estate, which intervenes between the death of the testator and the period of distribution of the estate devised to the class, then all persons belonging to such class, at the tim*^ when the estate is divided, are included, though born after the death of the testator. ^^ 146. In Mather v. Matlier,^^ the will made devise of the "net income, of testator's estate to his wife and chil- dren, during their lives," the court holding the language used was a devise of his estate to his children during their lives, and on the death of the last surviving child the remainder to go to his grandchildren, or their children, living at the period of distribution. A particular estate would then vest in his children at the death of the testator, and it is such an estate in them as will support the remainder in the grandchildren to whom it is devised. That being so, the children of the tes- tator took a particular estate which would prevent the estate devised to the grandchildren from vesting in possession at the death of the testator, and thus it would let in afterborn chil- dren. Adopting this construction, the case is relieved of much difficulty, and effect can be given to the plainly expressed in- tention of the testator. In the case the rule given in the text was applied and under that rule all grandchildren living at the termination of the life estate of the testator's children, as well those born after as before his death, were permitted to share in his estate. 147. In Cheney v. Teese,^^ the testator's will read: * ' I hereby give the fee simple of ' the lands ' to my grandchil- dren, whatever number they may be, share and share alike, to take possession only after the death of my said daughters." 59—2 Jarman on Wills, 75, 79; 60—103 111. 607. Handberry v. Doolittle, 38 111. 202. 61—108 111. 482. CONSTRUCTION OF WILLS. 99 Held, except so far as limited by the words postponing the pos- session, the grant is present and unconditional of a present full fee simple to the grandchildren. Under this will the two grandchildren iii esse at the death of the testator took at once a vested remainder in all the lands, to open however, upon the subsequent birth of other grandchildren, if any, to let in those subsequently born. 148. In McCarthey v. Osburn,^^ it is said: All the provisions of the will considered, we have no doubt of the correctness of the conclusions of the court below in holding that the expression, "heirs of Henrietta," means simply the children of Mrs. Osburn. That the words, "child of Hen- rietta," are here used in the same sense as "heirs of Henrietta" in the preceding sentence, can not seriously be doubted. The testator having in the second clause of the will, spoken of Harry G. McCarthey as the only heir of his deceased daughter, Jennie, and of the children of Mrs. Osburn as "heirs of Hen- rietta." In the third clause follows the words "should any of the heirs, after arriving at that age (twenty-one years), wish to go into business," etc. Held, the testator by the expres- sion, "the heirs," evidently means to include the children of both of his daughters, thus bringing all his grandchildren, the remaining objects of his bounty, into a common class, and clearly placing them on a common footing, at least so far as that particular provision of the will is concerned. The case cited is long, but fully discusses the principles contended for in this section. In Woodward v. Woodward,^^ where a will devised real estate in fee, and the testator before his death conveyed the real estate to the devisee in trust for the benefit of the devisor, it was held, that at the death of the devisor all the title, which he had, both legal and equitable, passed to the devisee. 149. Widow's renunciation and election. In Cowwaij v. Hitclicoch,^^ the record disclosed that the widow sup- 62—118 III. 414. 64—103 III. 271. 63—33 Colo. 457. 100 THE LAW OF ESTATES. posed she had the right to take under the will, and at the same time accept the widow's award. It being held: "Under the circumstances it would be adopting a hard rule to hold that the mere act of accepting the widow's award, under a mis- taken belief, would bar her of all rights under the will, and we do not believe that any respectable authority would sustain a precedent of that character, "^s Before any presump- tion of an election can arise, it is necessary to show that the party acting or acquiescing was cognizant of his rights. When this is ascertained it may be further neces- sary to consider whether the party intended an election. The widow in this case, by accepting the award, as appears from the evidence never intended to reject the provisions of the will, but all the time supposed, and was advised, that it was her right to take under the will and accept the widow's award. Under such circumstances we perceive no ground for holding that she cannot take under the will.^^ In Evans v. Price,^'^ the record shows that the widow by written renunciation elected to take her dower as widow, and not an absolute estate as heir. Held: It matters little what she claimed or did not claim. Her rights were fixed by statute, on renouncing the will, and they could not be af- fected by claiming, or omitting to claim, any specific estate. And in Colorado it is held, where the widow renounces under the will and elects to take one-half of whole estate, she is en- titled to remaining moiety after discharge of debts against the estate.68 In Ward v. Ward,^^ it is held: The portion raised for an after-born child, from the various devises, was subject to the widow's dower, notwithstanding, she may have re- nounced under the will ; the part taken by such child is to be treated as intestate property, and the provisions of the will 65— story's Eq., Vol. 2, Sec. 1097. 68 — Hannah v. Palmer, 6 Colo. 66— Conway v. Hichcock, 103 111. 161. 271. 69—129 111. 111. 67— lis 111. 598. CONSTRUCTION OF WILLS. 101 made for the widow is subject to its proportionate part in mak- ing up the portion of such child. 150. Widow of illegitimate given whole estate. In Evans V. Price,"^^ the widow of an illegitimate was given, on re- nouncing, the whole estate under the statute of descent. The record shows that on the day the will was admitted to probate, the widow filed her written renunciation of its provisions in her favor, and requested that it be made a matter of record, which was done. It was conceded the testator was an "illegiti- mate person," as the term is used in the statute; that he died leaving no child or descendants of any child, and that his widow, P., survived him. Held : Under the act of 1872, where an illegitimate person died testate, leaving a widow and no descendants, his widow, upon renunciation of his will within one year after its probate, took absolutely the whole of his estate, both real and personal. 70—118 111. 598. CHAPTER IX CONSTRUCTION OF WILLS-CONTINUED Sec. 151. General rules relating to the construction of wills. 152. Ancient English rules of con- struction, general. 153. Ancient rules modified and broadened, Rule VII. Sec. 154. Rule XVII modified. 155. Rule XIX modified. 156. American principles of con- struction. 157. The Illinois decisions follow the modern principles. Sec. 151. General rules relating^ to the construction of wills are here given as published by Mr. Redfield in his work on Wills,! collated by Mr. Jarman in his work on "Wills. We omit the authorities cited by the author in support of the various rules, referring the reader to the works in question for such purpose. The Ameri- can cases, under the modern rules of construction, very often disregard the general rules when it becomes necessary so to do, in order to uphold a will and give effect to the intention of the testator. Mr. Redfield says, page 421 of the same volume : "There is no better principle in regard to all rules of con- struction, whenever applied, than to use them as helps and as- sistants toward reaching the intent of the testator ; and to aban- don them whenever it is apparent they lead one side of that object, thus making them our servants rather than our mas- ters." We also cite from note 2 of this author, as it is quite pat to the subject in hand. "Lord Kenyon's opinion in Small V. Allen.^ It has happened in regard to the wills of some of the most eminent of the English bar that they have been held absolutely void for uncertainty. The case of Sir J. Bland is here mentioned by his lordship, who said at the close of his will, that he had disposed of his estate in so clear l_Vol. 1, 4th ed., p. 425, et seq. -8 T. R. 497, 502. 102 CONSTRUCTION OF WILLS— CONTINUED. 103 a manner that it was impossible for any lawyer to doubt about it. This will was afterwards contested, and came before Lord Hardwicke, who said that he was utterly at a loss to conjecture the intention of the testator, that he "wished he could find some ground on which to found a conjecture." 152. Ancient English rules of construction generaL I. That a will of real estate, wheresoever made, and in what- ever language written, is construed according to the law of England (in other words, according to the law of the place where the real estate is situated). But a will of personalty is governed by the lex domicilii (the place of residence of the deceased person; in the county and State fixed by statute law for the probating of such will).^ II. That technical words are not necessary to give effect to any species of disposition in a will. III. That the construction of a will is the same at law and in equity. The jurisdiction of each being governed by the nature of the subject though the consequences may differ, as in the in- stance of a contingent remainder, which is destructible in the one case and not in the other. IV. That a will speaks, for some purposes, from the period of execution, and for others from the death of the testator; but never operates until the latter period. v. That the heir is not to be disinherited without an express devise or necessary implication, such implication importing not natural necessity, but so strong a probability that an intention to the contrary cannot be supposed. VI. That merely negative words are not sufficient to ex- 3— R. S. of 111., 1874, Sec. 13, Same statutes Vol. 3, p. 4041, and Chapt. 30, "Conveyance" Act, chap- case cited under section 11, "Wills" ter 148, section 11, "Wills." Starr Act. Kurd's R. S. of 111., 1905, & Curtis Annotated Statutes of Chapt. 30, Sec. 13, "Conveyance" Illinois, with Jones & Addington's Act, p. 466; Turner v. House, 199 Supplements thereto. Vol. 1, p. 111. 464. Kurd's R. S. of 111., 1905, 925; Vol. 4, p. 255; Vol. 5, p. 116, Chapt. 148, Sec. 11, "Wills" Act, p. and cases cited in each volume: 2052, R. S. of 1845, p. 540, Sec. 17. 104 THE LAW OF ESTATES. elude the title of the heir or next of kin. There must be an actual gift to some other definite object. VII. That all the parts of a will are to be conttrued in re- lation to each other, and so as, if possible, to form one con- sistent whole, but where several parts are absolutely irrecon- cilable, the latter must prevail. VIII. That extrinsic evidence is not admissible to alter, de- tract from, or add to, the terms of a will; though it may be used to rebut a resulting trust attaching to a legal title created by it; or to remove a latent ambiguity (arising from words equally descriptive of two or more subjects or objects of gift). IX. Nor to vary the meaning of words ; and, therefore to at- tach a strained and extraordinary sense to a particular word; an instrument, executed by the testator, in which the same words occurs in that sense is not admissible. X. But the courts will look at the circumstances under which the devisor makes his will, as the state of his property and the like. XI. That in general, implication is admissible only in the absence of, and not to control, an express disposition. XII. That an express and positive devise cannot be con- trolled by the reason assigned or by subsequent ambiguous words; or by inference and argument from other parts of the will ; and, accordingly, such a devise is not affected by a subse- quent inaccurate recital of, or reference to, its contents ; though recourse may be had to such reference to assist the construc- tion in case of ambiguity or doubt. XIII. That the inconvenience, or absurdity of a devise, is no ground for varying the construction, where the terms of it are unambiguous; nor is the fact, that the testator did not foresee all the consequences of his disposition, a reason for varying it. But where the intention is obscured, by conflicting expres- sions, it is to be sought rather in a rational and consistent, than an irrational and inconsistent, purpose. XIV. That the rules of construction cannot be strained, to bring a devise within the rules of law ; but it seems that, where CONSTRUCTION OF WILLS— CONTINUED. 105 the will admits of two constructions, that is to be preferred which will render it valid; and therefore the court, in one in- stance, adhered to the literal language of the testator, though it was highly probable that he had written a word, by mistake, for one which would have rendered the devise void.* XV. That favor, or disfavor, to the object, ought not to influ- ence the construction. XVI. That words, in general, are to be taken in their ordi- nary and grammatical sense, unless a clear intention to use them in another can be collected, and that other can be ascer- tained ; and they are in all cases to receive a construction which will give to every expression some effect, rather than one that will render any of the expressions inoperative ; and of the two modes of construction, that is to be preferred which will pre- vent a total intestacy. XVII. That where a testator uses technical words, he is presumed to employ them in their technical sense, unless the context clearly indicates the contrary. XVIII. That words, occurring more than once in a will, shall be presumed to be used always in the same sense, unless a contrary intention appears by the context, or unless the words be applied to a different subject. And, on the same prin- ciple, where a testator uses an additional word or phrase, he must be presumed to have an additional meaning. And where the argument, that the testator, notwithstanding some varia- tion of expression had the same intention, in several instances prevailed, in the English cases. XIX. The words and limitations may be transposed, where warranted by the immediate context, or the general scheme of the will; but not merely on a conjectural hypothesis of the testator's intention, however reasonable, in opposition to the plain and obvious sense of the language of the instrument. XX. That words which it is obvious are miswritten (as dying with issue for dying without issue), may be corrected. XXI. That the construction is not to be varied by events, 4—3 Bur. 1626; 3 Br. P. C. Toml. 209. 106 THE LAW OF ESTATES. subsequent to the execution; but the courts, in determining" the meaning of particular expressions, will look to possible circumstances, in which they might have been called upon to affix a signification to them. XXII. That several independent devises, not grammatically- connected, or united by the expression of a common purpose, must be construed separately, and without relation to each other; although it may be conjectured, from similarity of re- lationship, or other such circumstances, that the testator had the same intention, in regard to both. There must be an appar- ent design to connect them. This, and the former class of cases, chiefly relate to a question of frequent occurrence; whether words of limitation, preceded by several devises, relate to more than one of those devises. XXIII. That where a testator's intention cannot operate to its full extent, it shall take effect as far as possible. XXrV. That a testator is rather to be presumed to calculate on the disposition of his will before taking effect, than the con- trary; and, accordingly, a provision for the death of devisees will not be considered as intended to provide exclusively for lapse, if it admits of any other construction. 153. General rules modified and broadened. General rule VII. was modified and broadened in Norris v. Beyea,^ as follows : "Every part of the instrument must have its just operation, un- less there arises some invincible repugnance, or else some portion is absolutely unintelligible." This modified rule being now universally applied by American courts. 154. Rule XVII. was modified by English decisions. Young V. Robertson, Hall v. Warren,^ as follows : The primary duty of a court of construction, in the interpretation of wills, is to give to each word employed, if it can with propriety receive it, the natural, ordinary mean- ing, which it has in the vocabulary of ordinary life, and 6—13 N. Y. 273, 285. 6—4 Mack, H. L. 314, 325; Hall V. Warren, 9 H. L. Cas. 420. CONSTRUCTION OF WILLS— CONTINUED. 107 not to give words employed in that vocabulary an artificial, a secondary, and a technical meaning. In the latter case it being held, in construing the will of an illiterate man, the meaning of technical language may be disregarded, but no word which has a clear and definite operation can be struck out. 155. Rule XIX. has also been broadened by American and English decisions, and as the modified rule is quite often applied in the Illinois cases, the authorities will be cited under the proper head when the rule is applied ; it is as follows : Words, or clauses of sentences, or even whole paragraphs may be trans- posed to any extent, with a view to show the intention of the testator. But it must appear either from the words of the will, or extrinsic proof, admissible in aid of the construction of the words, that the transposition does really bring out the true intent of the testator, and thus render clear what was before obscure. For if the transposition leaves the same uncertainty, only giving a different import, it is not allowable. But where it gives effect to all provisions of the will, and renders them all harmonious and consistent, both with each other, and with the general purpose and intent of the will, it affords very sat- isfactory ground of presumption, that it reaches the source of the difficulty and explains the mode in which it arose. 156. American principles of construction. American courts through a long line of decisions, which are now generally fol- lowed, have established many principles of interpretation rightly their own; these principles have arisen from long experience and from the modern desire of the American courts to uphold and give effect to any will they may be called upon to construe, if in so doing, the conclusion is supported by sound reasoning and well settled principles of our own courts. The result being, the proportion of wills, and the devises and bequests thereunder, which in olden times would have been declared void for uncertainty, have under modem construction materially diminished, until now, we might say, it is very uncom- mon for wills to be declared void for uncertainty, and then it 108 THE LAW OF ESTATES. will occur through some grave oversight, or lack of ability in the preparation of the instrument. 157. The Illinois decisions will be found to follow the path laid out by the modern principles; and while the old general rules are not and cannot be abandoned, for they apparently embrace nearly every case that could arise, American courts find it impossible at all times to do full justice, by following blindly the old rules without the application of modern prin- ciples. CHAPTER X CONSTRUCTION OF WILLS— CONTINUED Sec. 158. General remarks. 359. The construction of wills, etc., is for court. 160. No distinction In method of executing, attesting and proving, 161. Codicils attached or append- ed, considered part of will. 162. Publication of codicil is pub- lication of will. 163. The general rules of Ameri- can courts for interpreting wills. 164. Technical and grammatical errors, punctuation. 165. Greatest indulgence to use of language. 166. The purpose of construction. 167. Particular expressions yield to general purpose. 168. Specific articles bequeathed, cannot be sold, lost or de- stroyed and replaced by an- other ai:ticle, unless specific- ally required. 169. Words will be read into will when necessary to give in- tention. 170. But under pretense of con- struction, courts have no right to either reject or supply words. 171. Patent and latent ambigui- ties. 172. Latent ambiguity Is disclosed by extrinsic evidence. 109 Sec. 173. Ambiguity explained and fur- ther defined. 174. Facts dehors the will. 175. Will devising real estate. 176. Will devising personalty. 177. Words of inheritance not nec- essary to convey fee. 178. Where devises are made to trustee. 179. Repugnant clauses. 180. Brownfield v. Wilson. 181. Friedman v. Stelner. 182. Life estate power of sale. 183. Henderson v. Blackburn. 184. Green v. Hewitt. 185. Kirkpatrick v. Kirkpatrick. 186. Chapin v. Crow. 187. Bowerman v. Sessel. 188. Walker v. Pritchard. 189. Fee-tail, life estate to grantee, remainder to successor in fee. 190. Frazer v. Supervisors. 191. Fee simple intended, if lessor be not limited. 192. The rule in Shelley's case. 193. Hageman v. Hageman. 194. Baker v. Scott. 195. Carpenter v. Van Orlinder. 196. Vesting of estates, vested and contingent remainder. 197. Joint tenancy, tenancy in common. 198. Conditions and conditional limitations. 199. Jennings v. Jennings. 110 THE LAW OF ESTATES. Sec. 200. Conversion. 201. Election allied with doctrine of. 202. Testator presumed to dispose of his whole estate. 203. Schofield v. Olcott. 204. Tautenham v. Dunz. 205. Perpetuities. 206. Fussey v. White. 207. Hale v. Hale. 208. St. Peter's Roman Catholic Church V. Grermain. 209. Charitable gifts and uses. 210. The legal definition of. 211. Statute of Charitable Uses, 43 Elizabeth, chapter 4. 212. The chancellor will direct a scheme for the charity. 213. The doctrine of cy pres. 214. Heuser v. Harris. 215. Power of sale under will. 216. Sale of an heir's expectancy. 217. Executor's interest. 218. Act of 21 Henry VII, chapter 4, In force in Illinois. 219. Lambert v. Harvey. 220. The application of the statute of Illinois. 221. Misdescription, surrounding circumstances. 222. Bowen v. Allen. 223. Kurtz v. Hibner. 224. Kirkland v. Conway. 225. Smith v. Dennison. 226. Kaufman v. Breckinridge. 227. Survivorship. Sec. 228. Blanchard v. Maynard. 229. Arnold v. Alden. 230. Charging legacies and debts on land. 231. General rule. 232. Reid v. Corrigan. 233. Bucher v. Bucher, 234. McCullom v. Chidester. 235. Miscellaneous cases charging debts and legacies. 236. Johnson v. Johnson. 237. Stickel v. Crane. 238. McFarland v. McFarland. 239. Daily v. Wilkie. 240. Irwin v. Walpert. 241. Richardson v. Ranson. 242. Richardson v. Eveland. 243. Charges upon gifts election applied. 244. Doctrine of election applied to dower and other rights. 245. Election express and implied. 246. Ademption of legacies. 247. Richardson v. Eveland. 248. The application of the word "money" as used in will. 249. Per capita and per stirpes. 250. Residuary bequests and lega- tees. 251. To whom the residuary es- tate will go. 252. Abatement suits to collect. 253. Presumption of death after seven years. 254. Heintz v. Ahlgren. Sec. 158. General remarks. Ow^ng to the vast number of cases involving the construction of wills, testaments and codi- cils by the Illinois court, we give in this chapter, the well set- tled general rules governing the interpretation and construc- tion of such instruments by the supreme court of this state. The courts of Illinois have and do apply when necessary, all CONSTRUCTION OF WILLS— CONTINUED. Ill the ancient rules of construction and such modifications thereof, as the courts of this country consider best adapted to our prac- tice in this regard. American courts have, for many years, applied modem rules to give effect to the intention and purpose of the testator. These modern rules for interpreting and con- struing wills are found largely in American decisions, coming as they have from eminent and distinguished jurists of our country, they are as a matter of fact a part of the impor- tant equity jurisprudence of America. In those states of the United States in which the several legislatures have not inter- posed by positive enactment, there still remain a few well rec- ognized arbitrary rules that are applied in the construction of wills and other instruments where similar rules of construc- tion apply. These arbitrary rules often defeat the manifest intention of the testator; particularly, the often quoted and readily applied rule in Shelly 's case, which has perhaps con- tributed more than all other rules, to defeat the wishes and purposes of those who have attempted to make disposition of their estates by will. The rule in Shelly 's case is a part of the law of the State of Illinois, and is in fact a rule of property that our courts fully recognize and will continue to do so, until the legislature sees fit to abolish that rale. The words and expressions used in a will differ materially; the object and purpose of the testator or testatrix also differ, thus establish- ing the fact, that no two wills are exactly alike. A certain guide in making testamentary disposition of one's estate, may be found in the statute law of the various states; and par- ticularly, in the well considered decisions of the courts of last resort. It is presumed to be the universal desire of men and w^omen to bestow their bounty wisely and well ; and it may also be said, such seek legally safe and sound testamentary disposi- tion of their property. Immense and great estates in this coun- try are rapidly accumulating, consisting of all kinds and species of property, extending over many and possibly all states of the Union. This is the natural result of the easy commingling of the people of one state with that of another ; the thrift, identity 112 THE LAW OF ESTATES. or interest of the individual with persons, firms or corpora- tions conducting business in the different states. The testator, therefore, in making testamentary disposition of property should possess or acquire a knowledge of the laws of the different states and the rules governing the construction and interpreta- tion of wills. Modern legislation should aim to accomplish a rapid legal system for the complete settlement and distribution of estates of deceased persons. And when it is certain courts of probate lack sufficient power to accomplish this result, the legislature should take notice and act without delay to meet the exigency. The decisions of the Illinois supreme court are convincing proof of the strong personnel of that court from its earliest days. Its careful interpretation of wills and codicils has rightly earned for it the strongest confidence and respect of the legal profession within and without this state. Its funda- mental rule for the interpretation of wills has always been to give effect to the intention of the testator where it is possible so to do under existing law. 159. The construction of wills and codicils is always a mat- ter for the court and not for a jury.i 160. No distinction in method of executing, attesting and proving of w^ills and codicils. The statute of Illinois makes no distinction between wills, testaments and codicils, in the method of executing, attesting and proving the same, the statute directs how it should be done and should be closely followed.^ 161. Codicils attached or appended to considered part of will. Such are taken and considered as a part of the will ; they are universally construed together as one instrument, if the codicil does not contain any clause of revocation.^ 1— Ruffin V. Farmer, 72 111. 615. Vol. 4, pp. 1284, 1285, and cases 2 — Sec. 2, chapter 148, "Wills. ' cited; Vol. 5, p. 576, and cases cit- Starr & Curtis Annotated Statutes ed; Kurd's R. S. of 111., 1905, same of Illinois, with Jones & Adding- section and chapter, p. 2050. ton's Supplements thereto. Vol. 3, 3 — Paige on Wills, Sec. 462, and pp. 4026 to 4033, and cases cited; authorities cited by author. CONSTRUCTION OF WILLS— CONTINUED. 113 162. Publication of codicil is publication of the will. ''A publication of the codicil is a publication of the will in the fonn it was at the time of the execution of the codicil, and proof of the execution of the codicil establishes the will."* 163. The general rule of American courts for interpreting wills and codicils. "That the whole will takes effect, so far as it is not inconsistent with the codicil, if it can fairly be done, so as. to make it harmonize with the body of the will. It is the established rule not to disturb the dispositions of the will fur- ther than is absolutely necessary for the purpose of giving effect to the codicil.^ In Vestal v. Garrett,^ the court expresses itself in these words. A codicil revokes so much of the will as is inconsistent with it, but as a general rule, it will not be held to be inconsistent beyond the clear import of its langTiage, and when a devise is clear, it is incumbent upon those who contend it is not to take effect by reason of a revocation in the codicil, to show that the intention to revoke is equally clear and free from doubt as the original intention to devise. Indeed, it may be stated gen- erally, as a canon of construction, that a clear gift cannot be cut down by any subsequent words, unless they show an equally clear intention. It may also be said to be an established principle, that an express intention to make the alteration in a will in one particular, negatives, by implication an intention to alter it in any other respect.'^ 164. Technical and grammatical errors, punctuation. Gen- eral intent overrides technical and grammatical rules, the word "never" rejected and "forever" given effect, under this rule.^ Punctuation is not regarded in construing wills.'' 4 — Duncan v. Duncan, 23 111. 296; Whitman v. Baker, 52 N. Y. 364; Fry v. Morrison, 159 111. 244; 46. Hubbard v. Hubbard, 198 111. 624. 8— Holiday v. Dixon, 27 111. 33; 5—3 Am. & Eng. Ency. of Law, McNeil v. Caruthers, 4 111. App. p. 294, and cases cited. 552. 6—197 111. 407. 9— Johnson v. Bank, 192 111. 543; 7 — Greenleaf on Evidence, Sec. Crawford v. Burke, 201 111. 589. 682; Quincy v. Rogers, 9 Cush, 8 114 THE LAW OF ESTATES. 165. Greatest indulgence to the use of language. The law of Illinois extends the greatest indulgence to the use of lan- guage in a will; the intention of the testator is always sought in the words of the instrument ; the court will read the will and the various expressions therein, in the sense in which they were employed; courts will consider the instrument in the light of the circumstances in which the testator was placed when the will was made, and give effect to each and every part in con- struing.i*^ 166. The purpose of construction. The sole purpose of con- struction of the instrument is to find and declare the intention of the testator, that effect may be given to such intention when not contrary to public policy or in contravention of law or the rules of property; the construction is to be ascertained from a full view of everything contained in the will, giving just weight and operation to each clause and word employed, unless there is some invincible repugnance, or some portion of the instrument is absolutely unintelligible.^^ 167. Particular expressions yield to general purpose. A will is held to speak from the death of the testator. To this rule, there is, however, the limitation, that when language is used which repels the presumption, it is otherwise ; and, in deter- mining that question the entire will must be considered, with the specific language employed in the clause being construed, to find the true intent of the testator. Particular expressions will not control where the whole tenor or purpose of the instrument forbids a literal interpretation of the specific words. Wills, like deeds, contracts and enactments, must be construed accord- ing to the intent of the maker, and that must be ascertained 10— Wigram on Wills, 2 Am. Ed. 11— Redfield on Wills, 334; Ca- 161; Jarmin on Wills, Vol. 2, Sec. ruthers v. McNeil, 97 111. 256 733; Decker v. Decker, 121 111. Kennedy v. Kennedy, 105 111. 350 341; Bingle v. Voltz, 142 111. 214; Taubenham v. Dunz, 125 111. 529 Roberts v. Roberts, 140 111. 345; Dickinson v. Dickinson, 138 111. Perry v. Bowman, 151 111. 33. 541. CONSTRUCTION OF WILLS— CONTINUED. 115 from an examination of the instrument and all its provisions, without the aid of extraneous testimony.^ ^ 168. Specific articles bequeathed cannot be sold, lost or de- stroyed, and replaced by another article, unless specifically re- quired by the terms of the will. The doctrine is firmly settled, that where a specific article is bequeathed, its sale, loss or 12— Redfield on Wills, p. 381, sec. 7; 1 Jarman on Wills, 593; Cochran v. Cochran, 14 Sim, 248; Slater v. Norton, 16 Ves, 197; Abney v. Miller, 2 Atkins, 598; Goodland v. Burnett, 5 Kay & J. 349; Rudstone v. Rudstone, 2 Ves, 418; Coppin v. Fernybough, 2 B. C. C. 291; Gold v. Judson, 21 Conn. 616; Updyke v. Thompkins, 100 111. 410. ]<lote. — Judge Redfield clearly recognizes the law, as laid down by an unbroken line of authorities, that while a general devise of property is presumed to take ef- fect from death, that is not the rule in cases of specific devises of personal property. He says: "Spe- cific gifts, whether of stock or other personal estate, have been construed to have refeirence to the property of the testator then in existence, and if the testator disposes of the articles described, either in whole or in part, and subsequently acquires more of the same description, the legacy will, nevertheless, fail as to all, except the portion not disposed of." The following cases hold, that when a testator expresses himself in the present tense, it must relate to what is in being at the time of making the will. Abney v. Miller, supra; Goodland v. Burnett, su- pra; Rudstone v. Rudstone, su- pra; Coppin V. Fernybough, supra. And when a testator refers to an actually existing state of things, the language will be referred to the date of the will, and not to his death, as this is then a prospec- tive event. Gold v. Judson, 21 Conn. 616. In the case of Updyke V. Thompkins, supra, the third clause of the will construed was "If I survive my mother, Mary A. Updyke, it is my will that my estate, real and personal, shall descend and be distributed in the manner as intestate estates de- scend and are distributed under the laws of Illinois." The fourth clause read: "I hold a number of notes against my brother (nam- ing him) — one of these notes is for $900, and I intend that one to be cancelled absolutely at my death, and given up to him. As to the others, if I survive mother (naming her), then at my death I want all the other notes can- celled and surrendered to (G. W. U.) but if mother survives me, then George must pay the inter- est on the other notes until her death, and then the other notes are to be cancelled and surren- dered to him, the said George; and I will that said $900 note shall be given up as aforesaid, and I declare that said (G. W. U.), in case I survive my said 116 THE LAW OF ESTATES. destruction cannot be replaced by substituting another article in its stead. So it has been held where specific stocks are be- queathed, and are afterwards sold and another kind purchased with the proceeds, the latter do not pass by the bequest. And so where a lease is the subject of a bequest for a term of years, if it is afterwards surrendered and a new lease taken, the latter does not pass by the will. When a specific article is bequeathed, another cannot be substituted, unless specifically required by the terms of the will.^^ 169. Words will be read into will when necessary to give intended effect. It is said in the well considered case of Welch V. Belleville Savings Bank.^"^ We will consider this case on the grounds counsel have placed it, and may possibly then give some additional views upon a phase of it that has only mother, shall inherit equally in all my estate with my other heirs, notwithstanding the cancelling and surrendering of the said notes, his full share herein. "The note for $900, spoken of in the will, at the time of the death of the testatrix, had already been surrendered to the maker by the testatrix, and at the time of her death she held six notes upon her brother; there being but one of the original notes remaining, the testatrix held at the date of the will; the others having been ob- tained afterwards. Held, the tes- tatrix intended to have only the notes held by her at the date of the will concelled and surren- dered, and not those which she might acquire after that time. And further it is held: It was not the scheme of the will to pro- vide a fund for the support of the mother of the testatrix, in case she should survive her daughter, from the interest to accrue upon notes, for in another clause of the will the mother was made the sole devisee of all the property in case of her survivorship. So it should not be understood from the clause which required the maker of the notes to pay the in- terest on "the other notes" to the mother in case she survived the testatrix, and upon her death "the other notes to be cancelled and surrendered" to the maker, that any other notes than those held by the testatrix at the date of her will were included. 13—1 Redfield on Wills, p. 381, sec. 7; 2 Jarman on Wills, sec. 593; Cochran v. Cochran, 14 Sim, 248; Slater v. Norton, 16 Ves, 197; Abney v. Miller, 2 Atkins, 593; Goodland v. Burnett, 5 Kaj* & J. 349; Rudstone v. Rudstone, 2 Ves, 418; Coppin v. Fernybough, 2 B. C. C. 291; Gold v. Judson, 21 Conn. 616; Updyke v. Thomp- kins, 100 111. 410. 14—94 111. 199. CONSTRUCTION OF WILLS— CONTINUED, 117 in part been suggested by counsel for appellee. Formerly wills were not construed by the courts with the liberality they now are, in furtherance of the intention of the testators. This is particularly true of devises, properly so called ; and even now, in those States in which the legislature has not interposed by positive enactment, there are a few well recognized arbitrary rules of construction that often defeat the manifest intention of testators, among the most noted of which may be mentioned what is known as the rule in Shelly 's case. The rule of construc- tion established by that most celebrated of cases has perhaps contributed more than all other causes combined to defeat the manifest wishes and purposes of those who have attempted to make dispositions of their estates by will. Subject to these few exceptions, however, the principle is firmly established and uni- versally recognized that a will should be construed so as to effectuate the intention of the testator as far as possible, and, in case of doubt, the scope of the instrument should be consid- ered, and its various provisions compared, one with another, in ascertaining such intention. To this fundamental rule of con- struction all others, with the exceptions above noted must be subordinated. Under its influence, the express words of a will must sometimes yield to the manifest intention of the testator ; and even words will be added where it is necessary to effectuate such intention.15 170. But under pretense of construction courts have no right to either reject or supply words, except where necessary to avoid an absurdity or give effect to the intention. Courts under the pretense of construction have no right to either reject or supply words, except where it is absolutely necessary to avoid an absurdity or give effect to the manifest intention of the testator; courts have no right to make a will either by rejecting some of its provisions or by adding new ones, nor by placing upon its provisions an arbitrary construction. Where the lan- 15— Wright V. Dunn, 10 Wheat. 537; Ruston v. Ruston, 2 Dall. 204; Bartlett v. King, 12 Mass. 244. 118 THE LAW OF ESTATES. guage of a will is clear and unambiguous, and there is no con- flict in the various provisions, and no absurdity would thereby be involved, it should be given effect according to the literal terms used, taken in their general and popular sense, except where technical terms are used, in which case they should be taken in their technical sense, unless the context shows they are used in a different sense.*^ 171. Patent and latent ambiguities. The liberality of the law for construing wills was intended to give the courts the largest possible dominion over the subject; and, where the courts are consistent, and put themselves within the well estab- lished rules of construction, they have ample power to fully give effect to every word of the will of any testator, where such will is not affected by some law or the carelessness of the party making or putting the will in form. Under one general class of wills, a construction will be placed upon the language used, without any assistance from extrinsic circumstances, if in so doing the true meaning and intention of the testator can be obtained. This rule is usually applied, where, on the face of the will an ambiguity arises, called in the law patent ambigu- ity. When the courts are called upon and find such ambiguity, they will apply the language of the testator or testatrix, with the express purpose of giving effect to their intentions mani- fested in the instrument, without the aid or assistance of extrinsic circumstances. In the other general class of wills, 16 — Dows V. Swan, 4 Mass. 208; does not give absolute fee." When Welch V. Belleville Savings Bank, "property devised for life must be 94 111. 199. converted into money." The rule 2^ote. — The latter case is dis- supporting this doctrine and its cussed in chapter 50 of this work, extension as originally applied by "Reversions and Remainders." the courts, in the absence of ex- Several important legal questions press language, or other intention are raised and passed upon by to be drawn from the will, and its Justice Mulkey, viz.: "As to char- application to remainder-man's aoter of estate devised by the rights. "Remainder in chattels will." "When limitation over is with limitation over," etc. "Ex- void." "When power of disposal ecutory gift" and rule applied to same, etc. CONSTRUCTION OF WILLS— CONTINUED. 119 the court in order to construe the instrument, regular on its face, finding it ambiguous seeks assistance by obtaining evi- dence of extrinsic circumstances in aid of its construction; the latter class of wills are said in the law to contain latent ambiguities. And when such appear, the court for the purpose of giving effect to the whole will, seek evidence to assist the construction and to establish the intention of the testator. 172. Latent ambiguity is only disclosed by extrinsic evi- dence. And if removable at all, it may be removed by extrinsic evidence.* ''^ Redfield mi 'Wills}^ The latter says: "That where the description of the object or subject of a devise is erroneous and mistaken, extrinsic evidence is admitted to aid the construction, by showing to whom or to what the testator must have re- ferred." Chief Justice Tindal, in the case of Miller v. Travers,^^ defines latent ambiguities, which might be explained by parol in two classes. First: "Where the description of the devise or subject matter of devise is clear on the face of the will, but on inquiry it is found that the words describe two or more persons or things with equal accuracy, so, unless it can be shown, by extrinsic evidence, to which the testator intended his words to apply, the devise must fail for uncertainty. Second : Where the description of the devise or of the devisee is correct in part and in part incorrect, as, where devisee's name is correctly given, but his residence, or some other cir- cumstance descriptive of the person or thing incorrect." 173. Ambiguity explained and further defined. Justice Bradley in the case of Patch v. White,^^ speaking for the court, said: "It is settled doctrine, an ambiguity may arise upon a will, either when it names a person as the subject of the gift, or a thing as the subject of it, and there are two persons or things that answer such name or description; or 17— Patch V. White, 117 U. S. 19—8 Bing. 244. 210. 20—117 U. S. 210. 18— Redfield on Wills, Vol. 1, p. 584, and cases cited. 120 THE LAW OF ESTATES. secondly, it may arise when the will contains a misdescription of the object or subjeetj as, where there is no such person or thing in existence, or, if in existence, the person is not the one intended, or the thing does not belong to the testator." The first kind of ambiguity, where there are two persons or things equally answering the description, may be removed by any evidence that will have that effect, or by either circum- stances, or declarations of the testator.21 "Where the ambiguity consists of a misdescription, as before stated, if the misdescrip- tion can be struck out, and enough remains in the will to identify the person or thing, the court will deal with it in that way ; or if it is an obvious mistake, will read it as if corrected.-- The rules cited relating to ambiguities have been adopted and applied by the Illinois courts.^^ Authorities in point under the statutory requirements of Illinois, providing that wills and testaments must be in writing and properly witnessed, hold that extrinsic evidence is never admissible to alter, de- tract from or add to the terms of a will. So if the words used are ambiguous, the words of a will cannot be varied by evidence of extraneous facts, however clearly a different in- tention may appear. ^^ And the Illinois authorities hold to this rule: "When there is a latent ambiguity in the description of the object or subject of the gift, and such ambiguity can be removed by rejecting false words, leaving a complete intelligible description, it is the duty of the court to do so, as when there are two descriptions, one good and the other bad, the latter may be rejected. And when such can be done the introduction of parol evidence to explain the intention of the testator is un- necessary. 25 21—1 Jarman on Wills, 370; 552; Bradley v. Rees, 113 111. 327. Hawkins on Wills, 910. 24— Kunz v. Hibner, 55 111. 514; 22— Patch V. White, 117 U. S. Bishop v. Morgan, 82 111. 351; 210. Bingel v. Volz, 142 111. 214; Wil- 23— Emmert v. Hayes, 89 111. liams v. Williams, 189 111. 500; 12; Bowen v. Allen, 113 111. 53; Vestal v. Garrett, 197 111. 398. Decker v. Decker, 121 111. 341; 25 — Emmert v. Hayes, 89 111. Transportation Co. v. Gill, 111 111. 11; Myers v. Ladd, 26 111. 415; CONSTRUCTION OF WILLS— CONTINUED. 121 174. Facts dehors the will. When the subject of the power is realty, and the question is as to the execution of the power by the devise, it is the well established doctrine, you may al- ways look at the conditions of the property and the facts dehors the will, to arrive at the intention of the testator.2<5 A recital in a will referring to certain property as "having theretofore deeded"; and the facts show the deed referred to was enclosed in an envelope and given to a custodian to be delivered after the grantor's death, — but with the reservation that the grantor retained the right to recall it, is not delivered, and cannot operate as a deed delivered; nor under this condi- tion of facts, does the recital in the will aid in establishing that there was a valid delivery of the deed so as to make it opera- tive.2'^ 175. Will devising real estate. In whatever language the will is written, it is construed according to the law of the place Swift V. Lee, 65 111. 336; Bowen v. Allen, 113 111. 53; Decker v. Deck- er, 121 111. 341; Witcomb v. Wil- liams, 189 111. 500; Vestal v. Gar- rett, 197 111. 405. Note. — In Vestal v. Garrett, su- pra, the authorities are reviewed and harmonized; the rule and the application thereof cited, as it re- lates to other questions arising under the will construed. Thus, it is held: "Unambiguous words cannot be varied by evidence of extraneous facts." That "false words of description may be re- jected under rules of construc- tion." The decision giving illus- trations when rule is applied for the purpose of removing ambi- guity by rejecting false words of description. And it is also laid down under rule cited, that a pro- vision of a will not inconsistent with the codicil thereto, must be given effect. The rule being stated from Paige on Wills, sections 462, as follows: "Where a codicil is appended to a will and does not contain any clause of revocation, the provisions of the will are to be disturbed only as far as is ab- solutely necessary to give effect to the provisions of the codicil, and in other respects such a will and codicil are to be construed to- gether." Held, A codicil which devises land which — by the will had already been given in fee to a daughter — to the testator's wife, "for her sole use and benefit dur- ing her life," but which makes no disposition of the remainder, leaves such remainder still in the daughter. See also chapter 50 of this work, "Reversions and Re- mainders." 26— Funk v. Eggleston, 92 IlL 538. 27— Noble v. Tipton, 219 111. 182, and cases cited in the opinion. 122 THE LAW OF ESTATES. or state where the real estate is situated. Further elaboration of this rule being unnecessary, as the devising of real estate will appear in many ways and forms in wills construed and under the proper heading relating thereto.^^ 176. Will devising personalty is governed by the lex domi- cili, the place of residence of the deceased person, in the county and state fixed by statute law of Illinois for the pro- bating of wills.29 177. Words of inheritance not necessary to convey fee — requisites of rule in Shelly 's case. Section 13 of chapter 30, entitled "Conveyances," is as follows: Every estate in lands which shall be granted, conveyed or devised, although other words heretofore necessary to transfer an estate of inheritance be not added, shall be deemed a fee simple estate of inheri- tance, if a less estate be not limited by express words, or do not appear to have been granted, conveyed or devised by con- struction or operation of law.^'' In Baker v. Scott,^'^ it is said: This section does not abolish or affect the rule in Shelly 's case, which is a part of the common law, in force in this state, it being in harmony with the genius of our institutions, and not in conflict with any stat- utory provision. ''The requisites of the rule in Shelly 's case are, that there must in the first instance, be an estate of free- hold devised; there must be a limitation to the heirs, or heirs 28 — Section 13, chapter 30, "Con- Addington's Supplements thereto, veyance" Act. Starr & Curtis An- Vol. 3, p. 4041, and cases cited; notated Statutes of Illinois, with Kurd's R. S. of 111., 190C, same Jones & Addington's Supplements section and chapter, p. 2052. thereto. Vol. 1, p. 925, and cases 30 — Starr & Curtis Annotated cited; Vol. 4, p. 255, and cases Statutes of Illinois, with Jones & cited; Vol. 5, p. 116, and cases Addington's Supplements thereto, cited; Kurd's R. S. of 111., 1905, Vol. 1, p. 925, and cases cited; same section and chapter, p. 466. Vol, 4, p. 255, and cases cited; 29 — Section 11, chapter 148, Vol. 5, p. 116, and cases cited. "Wills." Starr & Curtis Annotated Kurd's R. S. of 111., 1905, same Statutes of Illinois, with Jones & section and chapter, p. 466. 31—62 111. 86. CONSTRUCTION OF WILLS— CONTINUED. 123 of the body of the person taking that estate, by that name, and not to the heirs as meaning or explained to be sons, children, etc. ; the heirs must be named to take as a class or denomina- tion of persons in succession from generation to generation, and by way of remainder, or at least, so that the estate to arise from the limitation to the heirs, and the estate of freehold in the ancestor shall both owe their effect to the same deed, will or writing ; and that the several limitations shall give interests of the same quality, both legal or both equitable. The rule does not apply when the words lawful issue, sons or children, are used, instead of the words 'heirs,' because those words are regarded as words of purchase, and not of limitation ; and the ancestor, when such words are used, will take only a life estate, and his sons and children will take by purchase, or un- der the will, for the reason that they are a designation of per- sons to take originally in their own right. When taking in character of heir, he must take in quality of heir, that is by descent." This application of the statute of Illinois is con- firmed and carried out.^^ 32 — West V. Fitz, 109 111. 425; named person without the use of Lehndorf v. Cope, 122 111. 317; the words "heirs and assigns," the Carpenter v. Van Orlinder, 128 devisee will take an estate in fee 111. 187; Lomax v. Shinn, 162 111. simple unless a less estate is lim- 127; Lombard v. Witbeck, 173 IlL ited by express words in a subse^ 405; McFarland v. McFarland, 177 quent part of the will or by con- Ill. 215; Anderson v. Anderson, struction or operation of law. So 191 111. 102; Summers v. Highley, a provision in a will that the resi- 191 111. 196; Gannon v. Peterson, due of the testator's estate "shall 193 111. 378; Seager v. Bodie, 181 become vested in my adopted son 111. 518; Smith v. Kenny, 89 111. (naming same), and I hereby App. 297; Davis v. Ripley, 194 111. give, devise and bequeath to 401; Thomas v. Miller, 161 111. 68; .... my son aforesaid, all the Metzen v. Schopp, 202 111. 283; residue of my estate, .... to Turner v. Hause, 199 111. 469; him and the heirs of his body for- Brown v. John, 201 111. 295; Riss- ever," passes a life estate, only, man v. Wierth, 220 111. 181. to the son, with remainder to heirs Isfote. — In Metzen v. Schopp, su- of his body. Also, the words pra, it was held a fee may be lim- "Without leaving issue," used in a ited by a subsequent part of a will, clause of a will providing a dis- Thus, if an estate is devised to a position of property in case of tha 124 THE LAW OF ESTATES. 178. Where devises are made to trustee. The general rule in regard to wills is, that a trust estate is not to continue be- yond the period required for the purpose of the trust; and it makes no difference whether the limitation to the trustee be in fee or otherwise. But this general rule is subject to the qual- ification, that such rule, when applied, shall be consistent with the intention of the party creating the trust, as manifested by the words used in the instrument by which the trust is created. The instrument itself will be construed for the express purpose of carrying out the intention of the testator as expressed by the language of the will. In the cases cited, it is held, that not- withstanding the devise is to the trustee in fee, the trustee took a chattel interest only, for as many years as the minority of the devise might last ; and the estate over is a vested remainder and may or may not under the language used fall within the statute of uses.-^3 death of the testator's son without leaving issue, mean without leav- ing issue at the death of the son, and import a definite failure of is-, sue. Smith v. Kimbell, 153 111. 368; Strain v. Sweeney, 163 111. 603. See chapter 50 of this work, "Reversions and Remainders." So if a clause in a will provides that the sole survivor of the three devisees shall be "the sole owner in fee of all said premises," the fee simple title is not reduced to a life estate by reason of the further declaration that "he shall con- tinue to be such owner during the rest of his life." A testator, after devising an estate in fee, cannot take from such estate the quality of inheritance or the right of the owner to alien the estate. Bowen V. John, 201 111. 292. See also 12 Am. & Eng. Ency. of Law, 2d ed., 890. Illinois Mutual Ins. Co. V. Marseilles Manf. Co., 1 Gilm. (111.) 236; Wicker v. Ray, 118 111. 472; Giles v Anslow, 128 111. 187; Davis v. Ripley, 194 111. 399; Wal- ker V. Pritchard, 121 111. 221; Jones v. Port Huron Engine and Thresher Co., 171 111. 502. A char- acteristic of a base or determin- able fee is, that upon the happen- ing of a named event or the per- formance of a named condition the title conveyed is confirmed as a title in fee simple. Lombard v. Witbeck, 173 111. 396; Summers v. Smith, 127 111. 645; Strain v. Sweeny, 163 111. 603; Smith v, Kimball, 153 111. 368. And see and compare Bergan v. Cahill, 55 111. 160; Walker v. Pritchard, 121 id. 221; Siddons v. Cockrell, 131 id. 653; Johnson v. Johnson, 98 id. 564; Healy v. Eastlake, 152 id. 424; Thomas v. Miller, 161 id. 60. 33— Kirkland v. Cox, 94 111. 400; Starr v. Moulton. 97 111. 525; Preachers' Aid Society v. Eng- CONSTRUCTION OF WILLS— CONTINUED. 125 179. Repugnant clauses. Conditions that are repugnant to the estate to which they are annexed are absolutely void.-*^^ The Illinois authorities when applying this rule of construction, con- sider all the words of the will, including its provisions and con- ditions, for the purpose of ascertaining what estate the testator intended to confer by the granting words of the will; and of two repugnant clauses, the latter will prevail in a will; it will be regarded as intended to modify the former where they are simply inconsistent in part.^^ land, 106 111. 125; Kellogg v. Hale, 108 111. 164. See also chapters 12 and 13 of this work, "Trusts and Trustees." 'Note. — A devise of an estate, real and personal, after the pay- ment of debts, etc., to trustees, with power "to make such disposal of the estate as shall," in the Judg- ment of the trustees, "benefit and increase the value of said estate," and imposing the duty of paying to the testator's daughter "such installments of money as in the judgment of said trustees shall be proper, and sufficient to meet her current expenses and provide an ample and comfortable support," necessarily implies the power to sell the lands of the testator and convert them into money or in- terest bearing securities, and the power implied to sell is to sell the whole title, and to this is essen- tial the power to convey that title, requiring as a condition precedent a fee simple estate in the trus- tees, Kirkland v. Cox, supra. In the same case, the line of authori- ties are given in the opinion by Justice Schofield. as to when the statute of uses executes the trust created and the exceptions to the operation of the statute of uses. See pp. 411 to 414. The opinion in Kellogg V. Hale, supra, by Justice Craig, arises on a bill in equity to compel a conveyance of land. The opinion defining when the statute of uses executes and passes legal title to the person for whose use made. The court holding in that case, that it is the settled law of England and this country, that a conveyance of property from a husband to his wife, when made as a provision for her, will be sus- tained and upheld in courts of equity, where the rights of credi- tors are not affected by such transaction. See cases cited on pp. 168, 169 of opinion. 34— Jarman on Wills, 810; 4 Kent's Com., sections 131, 270. 35— Bromfield v. Wilson, 78 111. 467; Johnson v. Johnson, 98 111. 570; Murfit v. Jessop, 94 111, 158; City of Peoria v. Dant, 101 111. 609; Bland v. Bland, 103 111. 11; Henderson v. Blackburn, 104 111, 227; Friedman v. Steiner, 107 111. 125; Hamlin v. U. S. Express Co., 107 111. 443; Noble v. Tipton, 219 111, 182, 126 THE LAW OF ESTATES. 180. In Brownfield v. Wilson,^^ the testator by one clause of his will gave to his wife a forty acre tract of land in fee; and by a subsequent clause he gave to his children, to share equally and alike in his real estate ; the real estate to be sold after his wife's death. In construing the will, the court said : ' ' We are clearly of opinion, that the second clause must be read as devising to the persons named the remainder of his real estate, after excluding the forty acres named in the first clause. This seems to us the most reasonable interpretation that can be given to this clause, when considered in connection with the first." 181. In Friedman v. Steiner,^"^ a testator after making certain bequests, devised the residue of his estate to his wife; "and unto his heirs and assigns forever, to the total exclusion of any and all persons whatsoever," but upon the express con- dition that in case the wife should die intestate, and without leaving her surviving lawful issue, then all the rest and residue of the estate so bequeathed to the wife should be converted into money, and paid over by his executors, as follows: To A, $5,000, to B, $1,000, etc. Held, that the estate of the wife in the realty was not a mere life estate with power to dispose of the fee by will, as that could not be inherited, nor was it an estate in fee simple, as it could not descend to her heirs gen- erally, but to the heirs of her body; that the estate granted the wife, was an estate in fee determinable, which may be per- petual, or may be determined by her death intestate, without lawful issue, or previous alienation of the land. A clear power of sale conferred by will can be restricted only by subsequent explicit words. Courts will not interfere with discretionary powers of trustees except for fraud. It is also held, benefi- ciaries cannot disaffirm sale, and retain the purchase money, and the purchaser is not bound to look to the application of the purchase money where power of sale is discretionary.^^ 36—78 111. 467. 38— Dickson v. N. Y. B. Co., 211 37—107 111. 125. 111. 468. CONSTRUCTION OP WILLS— CONTINUED. 127 182. Life estate power of sale. A power of sale exists by or under the will only; it may be expressed by the language of the will or it may be implied according to the construction given the will in the absence of an expressed power to give effect to the testator's intention. What is a life estate is often a subject of controversy growing out of the language of the will. The courts universally hold that a devise in fee in one clause of the will may be restricted by other parts of the will to a life estate; and when such appears by the language of the will, they will not enlarge a life estate to a fee. The fol- lowing cases construing wills contain an express power of sale or a power of sale is implied from the language used in the will ; the cases cited also make a distinction between a devise in fee and one for life ; they are also striking illustrations of the ap- plication of the general rule, "the intention of the testator gath- ered from a consideration of the whole will, must prevail over technical expressions and individual clauses in the will.''^^ 183. In Henderson v. Blackburn,^^ a devise for life to ** occupy and use the same, or dispose of it and use and con- trol the proceeds thereof," confines the power of sale to the life interest. 184. In Green v. JSewett,'^'^ it was held: A life estate was created subject to being terminated by marriage, where the language of the will was, "the farm on which we now reside, also my personal property so long as she remains my widow"; at the expiration of that time, the whole, or whatever remains, to descend, etc. Held, the words -'what- ever remains" applied to the personal estate only. 39 — Welsch v. Belleville Savings Henderson v. Blackburn, 104 111. Bank, 94 111. 191; Funk v. Eggles- 229; McCall v. Lee, 120 111. 268; ton, 92 111. 515; Markillie v. Rag- Griffin v. Griffin, 125 111. 431; Clif- land, 77 111. 101; Johnson v. John- ford v. Davis, 22 111. App. 316; son, 95 111. 569; Mather v. Mather, Cashman's Will, 28 111. App. 351; 103 111. 608; Belslay v. Engle, 107 Dickson v. N. Y. B. Co., 211 lU. 111. 184; Ryan v. Allen, 120 111. 468. 653; Railsback v. Lovejoy, 116 111. 40—104 111. 229. 442; Cheney v. Teese, 108 111. 473; 41—97 111. 117. 128 THE LAW OF ESTATES. 185. In Kirkpatrick v. Eirkpatrick^^ A will gave the wife a life estate, with power to manage, rent, or sell, and recites that after her death, "if not already dis- posed of," it shall go to certain persons in remainder; held, the phrase quoted does not enlarge the power of disposition, so as to authorize a testamentary disposition by the life tenant. 186. In Chapin v. Crmv.^^ A grant to a person named for and during his natural life, and, upon his death, then to his sons^ gives the person named a life estate. The will of A devised his property to his wife, *'to hold and have to her, my said wife, and to her heirs and assigns for- ever, but if she gets married again, then at the time of her second marriage one-half of said estate, real and personal, to be sold and divided as follows, etc.," passes a fee simple to the widow, notwithstanding a subsequent clause attempting to limit her interest to a life estate.** 187. In Bowerman v. Sessel.'^^ A testator left his homestead to his wife during life, and devised that all his property, real, personal and mixed, be put on interest for the wife's benefit, and that at any time she might have any additional amount which the executor should decide she needed. The testator further provided, that after his wife's death the homestead should be sold and certain legacies paid, and that his wife should have his life insurance to use as she saw fit, and then gave "all balance of my estate to my wife to distribute as she sees fit after her death." Held, that this last provision was valid, and gave the wife only a life estate, with power of disposition. 188. In Walker v. Pritchard,^^ it was held: That a life estate in personal property gives the donee a right to consume such articles as cannot be enjoyed without con- 42—197 111. 144. 45—191 111. 651. 43—147 111. 219. 46—121 111. 221. 44 — Rissman v. Wierth, 220 111. 181. CONSTRUCTION OF WILLS— CONTINUED. 129 sumption, and to wear out by use such as cannot be used with- out destroying them. 189. Fee-tail — life estate to grantee — remainder in fee to successor in tail — application of the rule in Shelly 's case. Section 6 of chapter 30, entitled "Conveyances," provides: ' ' In cases where, by the common law, any person or persons might hereafter become seized in fee tail of any lands, tene- ments or hereditaments, by virtue of any devise, gift, grant or other conveyance, hereafter to be made, or by any other means whatsoever, such person or persons, instead of being or becom- ing seized thereof in fee tail, shall be deemed and adjudged to be, and become seized thereof, for his or her natural life only, and the remainder shall pass in fee simple absolute, to the person or persons whom the estate tail would, on the death of the first grantee, devisee, donee in tail, first pass, according to the course of the common law, by virtue of such devise, gift, grant or conveyance. "^'^ 190. In Frazer v. Supervisors,'^^ the statute quoted is applied, the court saying: "It was obviously the purpose of the general assembly, in adopting the sixth section, to pre- vent the tying up of titles in perpetuity by entails. This man- ifestly is the first purpose ; and another was to carry out the intention of the grantor in making the conveyance, that the land should go in remainder to the particular persons desig- nated in the deed. The artificial and highly technical rules of the ancient common law are not known or understood by the people generally, or by the great majority of persons who are called upon to prepare conveyances; and hence, it was also the purpose of this statute to more effectually carry out the intention of the parties. But few understand the rule in Shelly 's case, which is defined to be, "in any instrument, if a 47 — Starr & Curtis Annotated cited; Vol. 4, p. 254, and cases Statutes of Illinois, with Jones & cited; Vol. 5, p. 116, and cases Addington's Supplements thereto, cited; Kurd's R. S. of 111., 1905, Vol. 1, pp. 917, 918, and cases same section and chapter, p. 464. 48—74 111. 287. 130 THE LAW OF ESTATES. freehold is limited to the ancestor for life, and the inheritance to his heirs, either mediately or immediately, the first taker takes the whole estate; if it be limited to the heirs of his body, he takes a fee tail; if to his heirs, a fee sim- p2g_"49 "The general assembly must have intended to refer to all estates tail created by the statute de donis. They speak of persons becoming seized o"f such estates by the common law, when we have seen that estates tail grew out of the statute de donis, and not out of the common law. The object of our statute was to convert the estate tail in the donee into an estate for life^ and in the person who would first take under the grant into an estate in fee simple absolute, and thus cut off the reversion to the donor expectant on the failure of issue of the donee, of this class designated in the instrument conveying the land, and to vest the fee in the first taker. The last clause of the section, in declaring that the fee should pass according to the course of the common law, by virtue of the instrument creating the estate, is mani- festly intended in the same manner as the reference to the common law in the first clause of the section. It could not have been intended to so limit or qualify the provision as to the manner the heir should take, else other and very different language would have been employed." In Belslay v. Engle,^^ it is said: The rule in Shelly 's case, is at most a technical rule of construction, and must give way to the clear intention of the testator or donor, where that intention can be ascertained from the instrument in which the words supposed to be words of limitation are used."^ 49 — Preston on Estates, section The last case cited quotes the 263. rule laid down in Blackstone, and 50—107 111. 182. applies that rule to the decision 51 — The following cases support of the case, viz.: p. 292, "the word the text in 189 {ante) and also 'heirs' is necessary to create a fee, the suhstance of cases cited in so, in further limitation of the {ante 190) Butler v. Herests, 68 strictness of the feudal donation, 111. 594; Voris v. Sloan, 68 111. 588; the word 'body,' or some other Blair v. Vanblarcum, 71 111. 290. word of procreation, are necessary CONSTRUCTION OF WILLS— CONTINUED. 131 191. A fee simple title is intended if a lesser estate be not limited by express words. In the first instance it is presumed that the grantor or donor had the title he sought to convey, for he can not grant or give that which he has not. This fundamental rule is always applied in the matter of construc- tion, to ascertain what title the grantor or donor had, and what in contemplation of law he did convey or devise, aided by a view of the entire instrument construed and the intention manifest therein of the grantor or donor. Thus a deed from a life tenant passes only a life estate to the grantee, and the possession of the latter is, in contemplation of the law, the possession of the remainderman, the same as was the posses- sion of the original life tenant.^^ Again, where an estate is devised to A without the use of the words "heirs and assigns" A will take a fee simple estate of inheritance unless the will or instrument of conveyance reduces the estate to an estate less than a fee by express words, or by construction or operation of law.^2 So where a testator bequeathed and devised imto his only daughter ''and to the heirs of her body and to their heirs and assigns," all his real estate, it was held imder this devise the daughter took a life estate only, with the remain- der over to the heirs of her body in fee simple absolute, and that the limitation to her heirs was valid and binding. ^^ A to make it a fee tail, and ascer- portions:" Held, that Mary took tain to what heirs in particular under this devise, a simple life es- the fee is limited." The clause tate, with a remainder over to of the will construed and applica- the heirs of her body, in fee sim- ble was: "I will, give, bequeath pie absolute, and that the limita- and devise unto my daughter tion to her heirs was valid and (naming her), and to the heirs binding. of her body, and to their heirs 52 — Turner v. Hause, 199 III. and assigns, all my real estate, of 464; Giles v. Anslow, 128 111. whatever description and wher« 187; Mettler v. Miller, 129 111. ever situated; and in case the said 630. Mary shall die without issue, then 53 — Wolfer v. Hemmer, 144 111. the real estate hereby willed, be- 554; Saeger v. Bode, 181 111. 514; queathed and devised unto her. Smith v. Kimball, 153 111. 368; shall go to and descend unto my Rissman v. Wierth, 220 111. 181. brothers and sisters, and to their 54 — Blair v. Vanblarcum, 71 III. heirs and assigns, in equal pro- 290; Turner v. Hause, 199 111. 464; 132 THE LAW OF ESTATES. power of sale superadded to a life estate does not enlarge such estate to a fee.^^ Where the testator devised to his children and "to them only and the heirs of their bodies share and share alike," it was held, the instrument passed a life estate to such children with remainder in fee in each share to the heirs of their respective bodies.'^^ And in case of an entire failure of issue, to the heirs at law of the devisor.^ ^ A devise of an estate in fee simple to the testator's widow, followed by the qualification that if she re-marries she shall have only one-third of the estate, passes a base or determina- ble fee, and not merely a life estate. The devisee of a base or determinable fee has the same rights as if the devise were in fee simple absolute.^^ Where use of the words in a will "whatever remains" was held not to enlarge a life estate into a fee.^® And where a will contained the words "all the rest and residue of my property, in fee simple, I give, devise, etc., to my wife for life, after her Lewis V. Pleasants, 143 111. 271; Frazer v. Supervisors, 74 111. 282; Cooper V. Cooper, 76 111. 57; Lehn- dorf V. Cope, 122 111. 317; Din- widdle V. Self, 145 111. 290; Kyner V. Boll, 182 111. 171. 55— Walker v. Pritchard, 121 111. 221. 56 — Peterson v. Jackson, 196 111. 44. 57— Turner v. Hause, 199 111. 464. 58— Becker v. Becker, 206 111. 53. Also supporting the rule and doctrine of that case, see Wiggins Ferry Co. v. Ohio & Mississippi Railway Co., 94 111. 83; Lumbard V Witbeck, 173 111. 396; Chapman V. Cheney, 191 111. 574; Gannon V. Peterson, 193 111. 372; 2 Am. and Eng. Ency. of Law, 2nd ed., 368, 369, and cases cited. Isfote. — In the case of Becker v. Becker, supra, the following rule is quoted from Underbill on Wills, sec. 507, and applied to the case, giving construction to short will of testator. "No rule of law prevents the testator from giving her a fee simple in lieu of dower, which shall be defeasible and shall go to others on her re-mar- riage. Thus, where the testator in general terms devises land in trust, to pay the income to the widow for an indefinite period, without words of perpetuity or inheritance (and a fortiori, when it is to her and her heirs), with a proviso that if she shall re-mar- ry the land is to go to others. She takes a fee — conditional at common law, which will be de- feated by her re-marriage; but if she dies without having re-mar- ried, the fee descends to her heirs and the devise over is defeated." 59— Vannetta v. Carr, 223 111. 160. CONSTRUCTION OF WILLS— CONTINUED. 133 death to be equally divided, etc.," held to pass a life estate only to widow, with remainder to heirs.^*^ 192. The rule in Shelly 's case. "In any instrument, if a freehold be limited to the ancestor for life, and the inheritance to his heirs, either mediately or immediately, the first taker takes the whole estate ; if it be limited to the heirs of his body, he takes a fee tail; if to his heirs a fee simple." This rule is closely allied with the subject of life estates; the rule is in full force and operation in the state of Illinois. A very elab- orate discussion of the rule in connection with the statute of Illinois, sections 6, 13, chapter 30, entitled "Conveyances," can be found in the opinion rendered in Frazer v. Supervisors, etc.,^^ and authorities cited in sections of this work 193 to 195. 193. In Hageman v. Hageman,^'^ Chief Justice Shope, quoting from Kent, says: "The result of the famous controversy tended to confirm, by the weight of judicial au- thority at Westminster Hall, the irresistible pre-eminence of the rule, so that even the testators' manifest intent could not control the legal operation of the word 'heirs,' when stand- ing for the ordinary line of succession as a word of limitation, and render it a word of purchase. If the term 'heirs,' as used in the instrument, comprehend the whole class of heirs, and they become entitled on the death of the ancestor, to the estate, in the manner and to the same extent, and with the same descendible qualities, as if the grant or devise had been simply to A, and his heirs, then the word 'heirs' is a word of limitation, and the intention will not control the legal effect of the word." This doctrine has received repeated recogni- tion by this and other courts where the rule in Shelly 's case 60— Wallace v. Bozarth, 223 111. 254, 255, and cases cited; Vol. 5, 339. p. 116, and cases cited. Kurd's R. 66—75 111. 287. Starr & Curtis' S. of 111., 1905, same section and Annotated Statutes of Illinois, chapter, pp. 464, 466. Rissman v. with Jones & Addington's Supple- Wierth, 220 111., pp. 181, 185 to ments thereto. Vol. 1, pp. 917, 918, 187, reviews former cases, apply- 925, and cases cited; Vol. 4, pp. ing rule in Shelly's case. 67—129 111. 167. 134 THE LAW OF ESTATES. is in force.^8 The same Chief Justice, citing from Preston on Estates,^^ "In wills, the rule applies gen- erally, and without exception, to the several limitations, as often as the gift to the heirs is without any expression of qualification, and that neither the express declaration, first, that the ancestor shall have an estate for his life, and no longer; nor, secondly, that he shall have only an estate for life in the premises, and that after his decease it shall go to the heirs of his body, and in default of such heirs vest in the person next in remainder, and that the ancestor shall have no power to defeat the intention of the testator; nor, thirdly, that the ancestor shall be tenant for life, and no longer, and that it shall not be in his power to sell, dispose or make way with any part of the premises, will change the word 'heirs' into a word of purchase." Under the Illinois decisions, when the statute gives a fee unless the contrary appears, the rule in Wild's case, which in certain cases enlarges, by construction, a life estate into an estate tail, does not apply. '^'^ 194. In Baker v. Scott, "^^ it is said: The rule in Shelly 's case is a rule of property in this state, and its application to the particular case depends, not upon the quality of the estate intended to be given to the ancestor, but upon the estate devised to the heir. When the devise is to heirs generally, the rule applies, and is held to conclusively express the intention of the testator ; and, will necessarily gov- ern and control in determining the estate devised, notwith- standing the expression of an intention on the part of the testator that the ancestor shall take a less estate than the fee. 195. In the case of Carpenter v. Van Orlinder,''- Mr. Justice Schofield reviewing the authorities at length in this 68— Baker v. Scott, 62 111. 88; 70— Davis v. Ripley, 194 111. Wicker v. Ray, 118 111. 472; Ryan 399; Boehm v. Baldwin, 221 111. V. Allen. 120 111. 648; Carpenter v. 59. Van Orlinder, 127 111. 42. 71—62 111. 88; Ryan v. Allen, 69— Preston on Estates, Vol. 1, 118 111. 472. pp. 281-283. 72—127 111. 42. CONSTRUCTION OF WILLS— CONTINUED. 135 and other states, where the rule in Shelly 's case is and is not applied, quotes with much approval from Mr. Justice Elliott, delivering the opinion in Allen v. Croft J^ "It has seemed to many that there is a conflict between the rule declaring that the intention of the testator must govern, and the rule in Shelley 's case ; but the appearance of conflict fades away when it is brought clearly to mind that when the word 'heirs' is used as a word of limitation, it is treated as con- clusively expressing the intention of the testator. Where it appears that the word was so used, the law inexorably fixes the force and meaning of the instrument. If once it is granted that the word was used in its strict legal sense, nothing can avert the operation of the rule in Shelly 's case; so that the inquiry is, was the word used as one of limitation? The only method in which an instrument employing the word 'heirs' can be shown not to be within the rule, is by showing that the word was not employed in its strict legal sense." The doctrine thus elaborately and finely stated was adopted and sustained in three cases,'^* treating the devise in the will con- strued, as if the language used in the will was a devise to the daughter of the testator and their heirs, without qualification. 73 — 109 Ind. 475. three daughters took an estate in 74 — Ryan v. Allen, 118 111. 472; fee simple, as tenants in common. Wicker v. Ray, 120 111. 648; Allen subject to dower, and that either V. Carpenter, 127 III. 42; note Car- heir might have sold her estate, penter v. Van Orlinder, 127 HI. 42. without regard to the others, and In the case of Carpenter v. Van that the word "heir," in the de- Orlinder, stcpra (72), a testator vise, under this will, was not used devised to his wife and three as the equivalent of "child" or daughters "the use of all" his "children" or "issue." This brings property after the payment of his the case within the rule in Shel- debts, to be divided between them ly's case. In this case former de- "as the same would be by law cisions are reviewed, including without a will," except that none text writers' rules, supported by of the real estate, other than the unquestioned decisions. Preston wood-land, be sold or disposed of, on Estates, Vol. 1, pp. 281, 283; 4 "but be kept sacred for their Kent's Com., p. 233, 8th ed. ; Hay's heirs." Held, that the widow took Principles for Expounding Dispo- a dower estate for life, and the sitions of Real Estate, 96 (7 Law 136 THE LAW OF ESTATES. 196. Vesting of estates — vested and contingent remainders. A vested remainder is one by which a present interest passes to a party, though to be enjo3''ed in the future, and by which the estate is invariably fixed to remain to a determinate per- son after the particular estate has been spent.^^ A contingent remainder is one limited to take effect on an event or condition which may never happen or be performed, and by which no present or particular interest passes to the remainder-man, so that the particular estate may chance to be determined and the remainder never take effect.^^ The question of vesting or remaining contin- gent depends upon the condition of the intervening estate determining, and the estate over taking effect; it is one that may happen some time, or it may never happen. If the former, then the estate in remainder will always be re- garded as vested.^2 The law does not determine who shall be the heirs of any person, until his death; and one to be an heir of another, must survive that other.^^ j^ ^[n ]^q noted, in relation to the vesting of estates, that the cases cited to sustain the text, falls within one or the other of the following classes. First: Where the gift takes effect, both in interest and possession, at the death of the testator, unless such gift is expressl}^ or by necessary implication, deferred to a future period. Second: Where the gift is so limited as to take effect, both in interest and possession, at a specified time subsequent to the testator's death. Third: Where it is limited to take effect in interest Lib. 52) ; Bender v. Fleurie, 2 see Underbill on Wills, pp. 192, Grant's Cases, 345; Butler V. Hues- 212; "Underbill and Straban's" tis, 68 111. 594; Hileman v. Bous- Rules, Articles 39 to 43, inc. laugb, 13 Pa. St. 344; Allen v. 81—2 Blackstone's Com. 169. Croft, 109 Ind. 476; Tbeobald on 82— Hunt v. McCartney, 18 111. Wills, 336, et seq.; Wicker v. Ray, 129; Gill v. Manufacturing Co., 92 118 111. 472; Ryan v. Allen, 120 111. 254; 2 Redfield on Wills, Sees. id., 648; Miller v. Ford, 109 Ind. 215, 217; Jarman on Wills, Sec. 159; Urich Appeal, 86 Pa. St. 386. 406. 80—3 Blackstone's Com. 169; 83— McCartney v. Osburn, 118 111. 403. CONSTRUCTION OF WILLS— CONTINUED. 137 at the testator's death, but the vesting in possession is de- ferred to a future period. Fourth: Wliere the gift is limited in such a manner as to take effect, both in interest and pos- session, upon some contingency or event, which may or may not happen till after the testator's death. All these rules of limitations are applied to the individual as well as to the sev- eral classes; and it will be found from the numerous authori- ties they are thus treated, whenever it is necessary to apply the same to individuals or classes. Thus to "Harry as heir of his deceased mother^" characterizing the person by name, makes reference to the same person as Harry Smith. Or if to classes "my children living" or grandchildren, "the heirs my grandchildren living at the time of distribution." A con- tingent remainder and a vested remainder, and the legal appli- cation of such when children and others take are fully dis- cussed in the following cases cited.^^ In the following cases it is held, a remainder is contingent when the person to take cannot be ascertained until the termi- nation of the particular estate ; a remainder contingent upon death or re-marriage of a certain person, is not excelerated by conveyance of such person's interest to a third person.^^ 84— Dee v. Dee, 212 111. 338; rick v. Kirkpatrick, 197 111. 150; McCartney v. Osburn, 118 111. 403; Railsback v. Lovejoy, 116 111. '442. Boyd V. Broadwell, 19 III. App. 85 — Brownback v. Keister, 220 178; Banta v. Boyd, 118 111. 186; 111. 544. In Clark v. Shawen, su- Kingman v. Harman, 131 111. 171; pra (84), the word "heirs" or Knight V. Pottgieser, 176 111. 374; "heirs-at-law," when used in a Harvard College v. Balch, 171 III. will, was held to apply to those 280; Seager v. Bode, 181 111. 518; who were heirs of the testator at Burton v. Gagnon, 180 111. 352; his death; and such is the rule un- Lambe v. Drayton, 182 111. 117; less the intention of the testator Nevett V. Woodburn, 190 111. 288; to refer to those who shall be his Field V. People, 180 111. 381; Lehn- heirs at some subsequent period ard V. Specht, 180 111. 213; Grim- is plainly manifested by the will, mer v. Friedery, 164 111. 248; Mc- And so in that case it is held, in Connell v. Stewart, 169 111. 379; the absence of a contrary inten- Clark V. Shawen, 190 111. 55; John- tion, a devise of a life estate, with son V. Askey, 190 111. 63; Boatman remainder over to a class of per- V. Boatman, 198 111. 419; Kirkpat- sons not named but described, will 138 THE LAW OF ESTATES. 197. Joint tenancy — tenancy in common. Section 5, chap- ter 30, entitled "Conveyances," provides: *'No estate in joint tenancy, in any lands, tenements or hereditaments, shall be held or claimed under any grant, devise or conveyance, what- soever, heretofore or hereafter made, other than to executors and trustees, unless the premises therein mentioned shall ex- pressly be thereby declared to pass, not in tenancy in common, but joint tenancy; and every such estate, other than to execu- tors and trustees (unless otherwise expressly declared as afore- said), shall be deemed to be in tenancy in common."®^ In the well considered case of Cheney v. Teese,^"^ the court applying the statute quoted, in construing the will before it, say: "Unless expressly created, a devise to grand- children born to the testator's two daughters, who were to have possession of the estate during their natural lives, cre- vest the remainder, at the testa- tor's death, in the persons then comprising the class, the right of enjoyment, only, being postponed. The case turns on this clause of the will in question. The testator left his entire estate to his wife for life, with specific bequests out of the remainder at Ker death, and provides "the residue of my estate, if there be any left, be divided, according to the Statute of the State of Illinois, amongst all my heirs, except those above named that I have excluded." Held, the word "heirs" refers to those an- swering the description at the tes- tator's death, and not to those who would be his heirs at the death of the wife. In the case of Johnson v. Askey, supra (84), it is said, a technical construction of words and phrases, although prima facie the one which should prevail, will not be carried to the extent of defeat- ing the obvious general intention of the testator, particularly where the will is drawn by a person un- acquainted with the precise tech- nical force of the legal formulas employed by him. And it is in that case held, if it clearly ap- pears, from the entire will, that it was the intention of the testator that the remainder should not vest at the time of his death, but at the period of distribution, such intention will be carried out by the courts. See also Chapter 50 of this work, "Reversions and Re- mainders." 86 — Starr & Curtis' Annotated Statutes of Illinois, with Jones & Addington's Supplements thereto. Vol. 1, pp. 916, 917, and cases cited; Vol. 4, p. 254, and cases cited; Vol. 5, p. 116, and cases cited. Kurd's R. S. of 111., 1905. same section and chapter, p. 464. 87—108 111. 473. CONSTRUCTION OF WILLS— CONTINUED. 139 ates a life estate in the two daughters until the death of both, as tenants in common, from the testator's death, without any right of survivorship, and on the death of one of the daugh- ters, the estate devised to her does not terminate, but survives in favor of her grantees, heirs or devisees, whether any parti- tion has been made or not; that upon the death of one of the daughters her interest did not pass to the surviving daughter, but passed to the heirs of the deceased daughter; or in case of a will to her devisees, until the death of the other daughter, in the absence of express words in the will creating in them a joint tenancy." In Mittel v. Karl, and Slater v. Gruger, it is held:^^ That no estate in joint tenancy shall be held or claimed, unless the premises shall expressly be thereby declared to pass, not in tenancy in common, but in joint tenancy. But since the married woman's act, a deed or devise to husband or wife make them tenants in common, and not tenants by the entirety. ^^ In the case of Magnuson v. Mag- nuson, the court citing this section of the statute, say:®^ "Under the statute M and L would have taken by the will as tenants in common and upon M's dying prior to the death of the testator the devise to him would lapse. Being tenants in common, the devises which lapse are not reabsorbed into the residue, but go as intestate property. In case of the failure or revocation of the devise to any of the tenants in common such shares descend to the heir-at-law of the testator, unless the devise be to the objects of a class. "''^ It is said in Vnderliill on Wills, section 336: "Where a lapse takes place in the gift of the residue, either because the sole residuary beneficiary has pre-deceased the testator or because one of the several residuary beneficiaries who take as tenants in common have died before him, the gift which lapses is not reabsorbed into the residue, but goes as intestate property either to the heirs or the next of kin of the testator, according to the nature of the property. This rule does not 88—133 111. 65; 165 111. 332. 90—197 111. 498. 89— Cooper v. Cooper, 76 111. 57; 91 — 3 Jarman on Wills, 5th Am. Mittel V. Karl. 133 111. 65. ed., p. 17. 140 THE LAW OF ESTATES. apply to a residue which is given in language which creates a joint tenancy among the residuary legatees, and a fortiori where the residuary gift is to several who take as members of a class, to be ascertained at the death of the testator." The court citing the following case to sustain the doctrine an- nounced in the decision :^2 ^ j)SLYt of the residue of which the disposition fails will not accrue in argumentation of the remain- ing parts as a residue of a residue, but, instead of resuming the nature of a residue, devolves as undisposed of.'^^ Where a testator devises to three of his children property as tenants in common, and subsequently revokes the devise to one and makes no dis- position whatever of the share revoked, such share will go to the other two, but it will descend as provided in the statute of descent. "94 Joint tenancies are not favored in Illinois; under section 5, chapter 30, entitled ''Conveyances,"^'^ no estate in joint tenancy passes under any grant, devise or conveyance, other than to executors and trustees, unless the premises shall be expressly declared to pass, not in tenancy in common, but in joint ten- ancy. If a grant or devise imparts the quality of survivorship to the estate, a joint tenancy is created, even though it is not expressly declared that the estate is not a tenancy in common.^'^ 198. Conditions and conditional Limitations or condition precedent and subsequent. Where a devise is to take effect only upon the performance by the devisee of a precedent con- dition, the condition must be strictly performed; and where 92 — Skrymsher v. Northcote, 1 supra (96), a devise in the will Swanst. 570. was to the testator's daughter and 93 — Powers v. Godwise, 172 his wife, "jointly," of certain de- Mass. 425 ; 2 Redfield on Wills, 2nd scribed property, "to them and to ed., p. 118, and cases cited. their heirs and assigns forever." 94 — Minkler v. Simons, 172 111. Held, creates a tenancy in com- 328. . mon, and not a joint tenancy, not- 95 — Starr & Curtis' Annotated withstanding the use of the word Statutes of Illinois, "Vol. 1, p. 916. "jointly." This opinion being sus- 96— Mustain v. Gardner, 203 111. tained by Slater v. Gruger, 165 HI. 284, and cases cited on page 286. 329; Davis v. Smith, 4 Harr. 68; Slater v. Gruger, 165 111. 332. In Billingsled v. Baldwin, 23 Md. 115. the case of Mustain v. Gardner, CONSTRUCTION OF WILLS— CONTINUED. 141 there is a substantial deviation from the intent of the testator as expressed in his or her will, the title will not vest. A court of chancery will never vest an estate, when, by reason of a con- dition precedent, it will not vest at law. And if the precedent act to be performed consists of several particulars, every par- ticular must be performed before the estate can vest or take effect. The legatary takes nothing till the condition is per- formed, and consequently has no right to demand the legacy, but it is otherwise where the condition is subsequent.®' A testa- tor devised to his three children ''eighty acres of land each, which I may hereafter select for each to have out of my land." Under construction of the will it was held, that the selection of the eighty acres which each child was to take was a condition precedent, on which the remainder was to vest, which condition not being performed the devise of the remainder was inopera- tive.®^ A provision in a will, that "if a certain legatee, or any one claiming under him, should attempt to deprive testator's widow of any right given her by the will, their rights should be forfeited," and should pass to certain collateral heirs named, was a condition subsequent^ and not a condition precedent to the vesting of the estate.®® 199. In Jennings v. Jennings,''- it is said: The ques- 97 — Nevins v. Gourley, 95 111. precedent; but if the condition be 206. subsequent, the condition is held 98— Goff V. Pensenhafer, 190 111. void, and the gift absolute. 200. Wright v. Mayer, 47 N. Y. App. 99— Nevitt v. Woodburn, 190 111. Div. 604. Same v. Same, 62 N. Y. 283. A condition in restraint of Sup. 610; Witherspoon r. Brokaw, marriage annexed to a gift by will 85 Mo. App. 169; Ramsdell v. to one who has never been mar- Boston, 172 111. 439; Conrad v. ried, is held to be contrary to pub- Long, 33 Mich. 78; HawKe v. En- lic policy, and void. The law fa- yart, 30 Neb. 149; Thayer v. vors marriage, and therefore does Spear, 58 Vt. 327; Born v. Harts- not recognize a condition annexed man, 80 Cal. 452. But see in this to a gift against marrying at all, connection a review of cases in Maddox v. Maddox, 11 Gratt. (Va.) this regard in matter of Haight, 804; 80 Am. Dec. 492-494; 38 Am. 51 N. Y. App. Div. 310; C4 N. Y. Dec. 156-161; 1 L. R. A. 837, 838. Sup. 1029; also see Rood on Wills, A gift made to a wife on condition sees. 212, 611 to 614, inclusive, and she shall not live with her husband cases cited indicating conflict in is void, where the condition is the opinions. 1—27 111. 518. 142 THE LAW OP ESTATES. tion of whctlier a condition is precedent or subsequent in one clause of the will, can only be determined by ascertaining the intention of the testator, as manifested in the will. In case of doubt, the .rule of construction requires that the entire in- strument, and all of its provisions, shall be considered, to ascer- tain its meaning. That part of the will in question construed, and to which this doctrine was applied being as follows: "A testator gave to his wife all his estate, to be disposed of in any way that could best support her for life, but if his sons, John and Thomas, should take care of their mother, they were to have certain lands; but if they failed to support their mother, then she could sell the land, or any part of it, to support her- self ; but if the sons complied with these conditions, they were to take immediate possession of the land. The court in con- struing this will say: The testator intended to charge his entire estate with the support of his widow ; that the question of support was a condition subsequent, the word ''comply" being used in the sense of "assent," and when John and Thomas assented, the estate passed to them, burdened with the condition of support of the mother ; that the widow of John being his heir, and proffering to support the widow, had a right to inherit and possess the estate, and could compel the grantee of the widow to re-convey to her. In the case of Illinois Land and Loan Co. v. Bonner, - where the will failed to provide for the event that did happen in that case, the court held: The testatrix did not in her will provide for the events that have happened, that is^ of her sister dying over eighteen years of age and her brother under twenty-one years of age. In such case, the court will not provide for the unforeseen events. Where the testator, in the disposition of his property, overlooks a particular event, which, had it oc- curred to him, he would in all probability have provided against, the court will not rectify the omission by implying or asserting the necessary clause. Conceiving it would be much like mak- ing a will for the testator, rather than construing that already inade.3 2—75 111. 315. 3— Cited in support of tlie doc- CONSTRUCTION OF WILLS— CONTINUED. 143 200. Conversion. The doctrine of conversion is the same, whether the conversion be wrought by will or contract. A devise of real estate, which by the provisions of a willj is to be converted into money, and that money distributed among the devisees, must be treated as a devise of money and not of land. • Devisees may elect to take the land itself, instead of the money ; but the character of the devise cannot be changed from money to land without the concurrence of all the dev- isees; when there is no election to take the real estate, it is to be considered as converted from the time of the testator's death.^ Equity has power, in a proper case, to authorize a con- vei^ion of tinist property contrary to the provisions of the will creating the trust.^ 201. Election allied with doctrine of conversion. Election is founded upon the equitable rule or principle: "He who accepts a benefit under a will must adopt the whole contents of the instrument, conforming to all its provisions and renounc- ing every right inconsistent with it."^ Election may be express trine in Illinois Land & Loan Co. not affect the validity of the gift V. Bonner, supra, 2 Roper on Leg- to the children of the testator's acies, 1464; same, Sec. 619, and son, and the absolute interest in marginal notes, with rule "A con- the fund vests in them subject to tingency divesting a prior vested their father's life estate and the interest must happen literally." provisions of the will respecting See also in this connection Chap- the purpose of the trust, and to ter 50 of this work, "Reversions the rights of afterborn brothers and Remainders." In Nevitt v. or sisters, if any, to be let in. Woodburn, supra (99), where the 4 — Baker v. Copenbarger, 15 III. testator bequeathed a trust fund 105; Rankin v. Rankin, 36 111. 293; to his son for life with remainder Ridgeway v. Underwood, 67 111. to his children, and at their death, 419; Estate of Joel Carington, 124 if childless, to go to collateral 111. 363; Fisher v. Fairbanks, 188 heirs of the testator. Held, the 111. 191. See Equitable conver- limitation over to the collateral sions, doctrine of, sections 310, heirs is void, under the rule 311, 312, 379, 57, 70, 71, 75, 610 against perpetuities, where, at the of this work, as applied to cases testator's death, two children of arising under rules of construc- his sons were in being but no tion. children had been born to them; 5 — Johnson v. Buck, 220 111. 226. but it is said, the holding of such 6 — 2 Jarman on Wills, page 443, limitation over to be void, does and cases cited; Wooley v. Schra- der, 116 111. 37. 144 THE LAW OP ESTATES. or implied from the construction or interpretation of the lan- guage used in the will or instrument before the court. The doctrine of elections, as between inconsistent rights, is well established in this state ; its most frequent application has been made to persons taking title under wills; and, as applied to such instruments, a person may not, at the same time take under a will and contrary to it. Equity has established its maxim to fit the case exactly: "He who would accept the bounty of another must do so upon such terms and conditions as the donor may choose to impose." One who takes under a will cannotj therefore, insist that the provisions in his favor shall be executed, while those to his prejudice shall be an- nulled. He must accept the will in its entirety or not at all.'' 202. Testator presumed to dispose of his whole estate. It is a rule of construction, that a testator, when he makes and publishes his will, intends to dispose of his whole estate, unless the presumption is rebutted by the provisions of his will, or evidence to the contrary.^ In determining the intention of the testator, the presumption of law is, that he intended by his will to dispose of all his projDerty and to leave none as intestate.^ 203. In Schofield v. Olcott, this rule is laid down from Redfield on Wills.^*' "The idea of any one deliberately purposing to die testate as to a portion of his estate, and intestate as to 7 — Willbanks v. Willbanks, 18 based on suspicion or speculation. 111. 17; Brown v. Pitney, 39 111. In Van Schaak v. Leonard, supra 468; Gale v. Gale, 48 111. 471 Wooley V. Schrader, 116 111. 29 Ditch V. Sennott, 117 111. 362 Gorham v. Dodge, 122 111. 528 (7), the doctrine is laid down as completely established, that, "elec- tion rests upon the ground, that one who asserts a claim to prop- Carper V. Growl, 149 111. 465; Fry erty under a will must acknowl- V. Morrison, 159 111. 244; Van edge the equitable rights of all Schaak v. Leonard, 164 111. 602; other parties under the same Buchanan v. McLennan, 192 111. will." 483. In the case of Fisher v. Fair- 8 — Higgins v. Dwen, 100 111. banks, supra (4), it is held the 554. court may look into state or con- 9 — Boehm v. Baldwin, 221 IlL dition of property in ascertaining 59. testator's intention. And it is said 10—120 111. 362; 2 Redfield on testator's intention cannot be Wills, 235; 2 Jarman on Wills, 2d ed., 469. CONSTRUCTION OF WILLS— CONTINUED. 145 another portion is so unusual in the history of testamentary dis- positions as to justify almost any construction to avoid it." 204. In Tautenham v. Dunz,^^ a testator devised to a person named, all his real estate by its proper description, and all his interest in a certain note secured by a deed of trust. Then followed these words in the will: "Also $3,000 in money, to be paid to her by my executor; also, all the loose property in, on and around the homestead, consisting of one cow, two hogs, and a lot of wood, and all other property of every kind." The record shows there was in fact in, on and around the homestead, many other articles of property, such as kitchen furniture, ten bushels of potatoes, three boxes of export beer, four and three-quarter barrels of cider, thirty bushels of corn, fifty bushels of oats, a ton of hay, a lot of ice and lumber, and implements and tools of various sorts ; and the testator owned other promissory notes for money he had loaned. The court in giving its opinion in construing this will, cite the rule laid down above, saying: "This will is in- artistically drawn. It is manifest that the scrivener had some knowledge respecting the words employed in making testa- mentary devises and bequests; but it is apparent from an inspection of the will itself, that he had little knowledge of the forms necessary in making testamentary disposition of estates. If it was the intention of the testator to bestow all his estate upon one person, that intention will not be defeated by a partial designation, if the general words, giving to them their natural meaning and operation, are comprehensive enough to embrace the whole estate." After reviewing the cases in point at length, the court holds, the sole devisee took all the property and estate left by the testator; the opinion concluding in the words quoted from 1 Jarman on Wills, 761. "The adjudged cases indicate the disposition of the judges of the present day to adhere to the sound rule which gives to words of a comprehensive import their full extent of operation, unless some very distinct ground can be collected from the context for considering them as used in a special and restricted 11—125 111. 524. 10 146 THE LAW OF ESTATES. sense." Especially must this rule be observed when there is no other bequest capable of operating on the general residue of the testator's personal estate, as in this case. 205. Perpetuities. The definitions given by Bouvier's Law Dictionary and by 2 ^Vashhurn on Real Property, page 652, have been adopted by the courts of Illinois. The first authority says: "A perpetuity is defined to be a limitation taking the subject thereof out of commerce for a longer period of time than a life or lives in being, and twenty-one years beyond, and in case of a posthumous child a few months more, allowing for the time of gestation." Washburn defines a perpetuity to be, "gyants of property wherein the vesting of an estate or inter- est is unlawfully postponed. "^^ \i jg held, where an estate is vested, although liable to be divested by a subsequent event, the postponement of the full enjoyment will not make the gift ob- noxious to the rule of perpetuity. 206. In Fussey v. White,'^^ it is very manifest the court, when possible, will avoid declaring a perpetuity. It being said: Such a construction of a will should be adopted, if it consistently may be, as will uphold it; and not cause it to be rendered of no effect. A devise will not be construed as attempting to create a perpetual trust, and thus render it inoperative, if the words used may be reasonably construed otherwise. Where a will provided, that real estate devised to the husband of the testatrix, shall after the husband's death, revert to the heirs of the testatrix, ' ' but only after payment by them ' ' to the husband's heirs for improvements on the laud, passes only a life estate to the husband, and not a fee, and such clause in the will did not create a perpetuity, since "heirs of the testatrix" means those living at her death, and payment by them for improvements on land thus devised, must be made in the lifetime of "the heirs of the testatrix."^'* 12 — Waldo V. Cummings, 45 111. writers as authorities, supported 421; Lunt v. Lunt, 108 111. 313. by decisions of courts frequently 13—113 111. 637. cited: 2 Redfield on Wills, p. 225, 14— Hill V. Gianelli, 221 111. 286. sec. 18; 1 Jarman on Wills, p. 737; See the following cases and text Illinois Land and Loan Co. v. Bon- CONSTRUCTION OF WILLS— CONTINUED. 147 207. In Hale v. Hale,^^ the court construes a will, a clause of which was interpreted by the court of appeals of New York, that court finding, so far as the will applied to real estate in that state, it worked an unlawful suppression of the powers of alienation ; and was, for that reason void. It was also held by the New York authority, the clause in question was repugnant to the provision of the statute of that state prohibiting accumulations, except for the times and purposes in the statute permitted. The Illinois court in the case cited, taking the position that "no such objection lies to that pro- vision of the will in Illinois." A perpetuity in this state is defined as given by Bouvier, holding as the court does, that the will in question does not contravene any public policy existing in the State of Illinois. 208. In the case of St. Peter's Roman Catholic Church v. Germain,^^ applying the rule in the construction of the statute of Illinois of 1869 and 1872, limiting churches to ten acres of land in quantity, say: "It is a well settled rule that when a corporation is forbidden to take or receive lands, such pro- hibition goes to its capacity to acquire, and a deed made to it under such circumstances passes no title, and the conveyance will be absolutely void ; and the same rule applies when such corporation has once exhausted its capacity in ac- quiring lands to the limit that is given." There is, however, one exception in Illinois and many other states to this rule against perpetuities, and that applies when gifts are made for charitable uses.^'' ner, 75 111. 315; Bland v. Williams, Annotated Statutes of Illinois, 3 M. & K. 411; Smither v. Wallack, with Jones & Addington's Supple- 9 Ves. 233; Peyton v. Berry, 2 P. ments thereto. Vol. 1, pp. 1026, Wms. 626; Mankin v. Phillipson, 1027, and cases cited; Vol. 4, p. 3 M. & K. 257 ; Gilman v. Redding- 301, and cases cited. Kurd's R. S. ton, 24 N. Y. 1. of 111., 1905, same section and 15—125 111. 408; ante, 205. chapter, p. 505. 16—104 111. 440. Starr & Curtis 17— Ingraham v. Ingraham, 169 III. 432. 148 THE LAW OF ESTATES. 209. Charitable gifts and uses. The word charity in its broadest sense, denotes all the good affections which men ought to bear toward each other. It generally embraces all that is usually understood by the words benevolence, philanthropy and good will.^^ 210. The legal definition given by Justice Gray in the case of Jackson v. Phillips, has been adopted and approved by the Illinois courts, and is quoted in the case of Crerar v. Williams. ^^ 18— Taylor v. Kelp, 2 111. App. 368. 19—14 Allen, 56; 145 111. 625; Crerar v. Williams. The will of John Crerar was construed, the 49th clause authorized the execu- tors and trustees to set apart so much of his estate or invest such a sum of money as in their judg- ment might seem necessary and proper, and to pay from the in- come thereof all costs, charges and expenses, and directed that any surplus income should yearly be paid over and devoted to the purposes set forth in item 50, and when in the judgment of such executors and trustees it was proper, the principal sum provid- ed by item 49 should be paid over, etc. By item 50 a devise was made of all the residue of the tes- tator's estate for a free public li- brary and its endowment. Held, that section 49 of the will was to be construed together with the 50th clause, and read as though it were a part of it, or as though it had followed that clause instead of preceding it. Any fund set apart under the 49th clause is to be treated as a part of the estate bequeathed by the 50th clause. The two clauses of the will, 49 and 50, taken together, it is held, do not give arbitrary power to the exec- utors and trustees to fix the amount of the principdl fund to be set apart under the 49th clause, or to say when it shall be paid over to the residuum. The exec- utors and trustees being author- ized to set apart a proper amount to raise an income to pay certain charges and expenses, all of which must be reasonable. That clause gives them no greater power tlian they would have had without it. In the Crerar case, the court de- fines a charity, in a legal sense, as a gift to be applied, consistently with existing laws, for the benefit of an indefinite number of per- sons, either by bringing their hearts under the influence of edu- cation or religion, by relieving their bodies from disease, suffer- ing or constraint, by assisting them to establish themselves for life, or by erecting or maintaining public buildings or works, or oth- erwise bearing the burdens of government. It is immaterial whether the purpose is called charitable in the gift, if it is so described as to show that it is charitable in its nature. And so it was held a gift, "for the erec- CONSTRUCTION OF WILLS— CONTINUED. 149 ' ' A charity in a legal sense, may be more f uUy defined as a gift, to be applied, consistently with existing laws, for the benefit of an indefinite number of persons, either by bringing their hearts under the influence of education or religion, by relieving their bodies from disease, suffering or constraint, by assisting them to establish themselves for life, or by creating or maintaining public buildings or works or otherwise lessening the burdens of govern- ment. It is immaterial whether the purpose is called charitable in the gift itself, if it is so described as to show that it is charita- ble in its nature." Anj'- tinist coming within this definition for the benefit of an indefinite class of persons sufficiently designated to indicate the intention of the donor, and constituting some portion or class of the public, is a charitable trust. Among such are the support and propagation of religion and the maintenance of religious services.^o To pay the expenses and salary of rectors ;2i or the preaching of an annual sermon in memory of the testator.22 In Hoeffej' v. Clogan, it is said:^^ "The doctrine of superstitious uses arising from the statute of Edward VI., chapter 14, under which devises for procuring masses were held to be void, is of no force in this state and has never obtained in the United States. In this country there is ab- solute religious equality, and no discrimination, in law, is made between different religious creeds or forms of worship. It cannot be denied that bequests for the general advancement of the Roman Catholic religion, the support of its forms of wor- ship or the benefit of its clergy, are charitable, equally with those for the support or propagation of any other form of religi- ous belief or worship. The nature of the mass, like preaching, prayer, the communion, and other forms of worship, is well understood. It is intended as a repetition of the sacrifice on the cross, Christ offering Himself again through the hands of tion, creation, maintenance and 21 — Alden v. St. Peter's R. C. endowment" of a free public li- Parish, J5S 111. 631. brary, in the city of Chicago, falls 22 — Durror v. Motteux, 1 Ves. •within the definition of a charity. Sr. 320. 20— Andrews v. Andrews, 110 111. 23—171 111. 462. 223. 150 THE LAW OF ESTATES. the priest and asking pardon for sinners as He did on the cross; such is the chief and central act of worship in the Roman Catholic church. The Roman Catholic church believes that Christians who leave this world without having sufficiently expiated their sins, are obliged to suffer a temporary penalty in the other ; and among the special purposes for which masses may be said is the remission of this penalty. A bequest for such special purpose merely adds a particular remembrance to the mass, and does not, in our opinion, change the character of the religious service and render it a mere private benefit-^* It was a fixed maxim in Roman jurisprudence that legacies to pious uses, which included all legacies destined for works of piety or charity, whether they related to spiritual or temporal concerns, were entitled to particular favor and deemed to be privileged testaments. The rule has always been adopted in the State of Illinois, "that conveyances and devises to charitable uses are not subject to operation of the rule against per- petuities, which forbids an estate in land to be tied up for more than a life or lives in being and twenty-one years. "^^ 24 — See same doctrine laid down even though the annexed trust in Hoeffer v. Clogan, and rule ap- may be void, as the latter will be plied therein; Schouler, Petitioner, regarded merely as a mode of 134 Mass. 426; Rhymer's Appeal, managing the trust. The inten- 93 Pa. St. 142; Seibert's Appeal, tion of the testator in favor of 18 W. N. Cass, 276. charity will be allowed to prevail 25 — Andrews v. Andrews, 110 even though his particular inten- 111. 223; Hale v. Hale, 125 111. 399; tion as to the manner of manag- Gray's Rules Against Perpetuities, ing the gift fails. The immediate sec. 589; Ingraham v. Ingraham, and unconditional devotion of a 169 111. 432. In this case, it is fund to charity, and not the time held: Provisions of a will v/hich or manner of its application or ad- contain charitable bequests will ministration, is the test of the receive a more liberal construction validity of a bequest for charity, than is allowable in case of gifts And so, in determining whether a to individuals. And where a vest- gift is immediate or to be post- ed estate is distinctly given to a poned until the time of payment charity, to which is annexed a or application, the language of the trust for accumulation which vio- testator used throughout the en- lates the rule against perpetuities, tire will, must be liberally con- the vested estate will be valid strued in favor of vesting the CONSTRUCTION OF WILLS— CONTINUED. 151 211. Statute of charitable uses — 43 Elizabeth, chapter 4, is the law of Illinois. The principles of pious legacies under the high authority of the civil law, were injected into the common law of England and subsequently the statute 43 Eliza- beth, chapter 4, known as the Statute of Charitable Uses, was enacted and has been and is now the law of England. The state of Illinois adopted in an early day, the common law of England, and thereby the Statute of Charitable Uses became and is the law of this state to-day, except where changed or modified by enactments of the state legislature in conflict with the original statute.^^ Under this Statute of Charitable Uses, the courts are very liberal in the construction of wills and other doc- uments granting gifts or legacies for charitable uses and pur- poses. The courts carry this doctrine to the extent in Illinois at least, that they will not permit to be lost such gifts or legacies, for either the uncertainty or failure of the person or objects for which such gifts or legacies were destined. In the case of Andrews v. Andrews, it is said:^^ "The princi- ple is well established, that if a bequest be for charity, it matters not how uncertain the persons or the objects may be; or whether the persons who are to take are in esse or not; or whether the legatee be a corporation capable, by laAv, of taking, or not ; for in all of these and like cases, the court will charitable interest. So where two of such appropriations "to revert" constructions of a bequest to char- to the original fund. Held these ity are possible, one of which will words create an implied trust, to render the bequest void as an ille- provide for the support of desig- gal perpetuity and the other will nated relatives of the testator, and render it valid and operative, the not a mere discretionary power in latter will be adopted. In this the trustees. See also 2 Story's case one of the clauses to the will Eq. Jur., sees. 1137, 1139. was a bequest to charity in the 26 — Starr & Curtis Annotated form of an accumulating trust, au- Statutes of Illinois, 2d ed.. Vol. 3, thorizing the trustees to appropri- p. 4046, sets forth the statute, 43 ate part of the fund to the sup- Elizabeth, known as the Statutes port of certain of the testator's of Charitable Uses. See Scates' kindred "in the event" they should Com., 720; Ingraham v. Ingraham, come to want, the unused portions 169 111. 432. 27—110 III. 223. 152 THE LAW OF ESTATES. sustain the legacy, and give it effect according to its own prin- ciples; and where a literal execution becomes inexpedient or impracticable, the court will execute it, as nearly as it can, ac- cording to the original purpose, or cy pres.^^ 212. The chancellor will direct a scheme for the charity. Another important rule applying to this class of cases being, that where money is given to a charity generally and indef- initely, without trustee or object selected, under the English law, the King, as trustee, or parens patriae will direct a scheme ; and where trustees are appointed the Chancellor will direct a scheme for the charity, he having jurisdiction over the trust.29 And this when neither the trustee or objects are selected. In the leading case in Illinois, often cited and sustained in later cases, Heuser v. Harris, it is said:^** "Surely the powers of a court of chancery should extend so far as to supply a trustee to manage a testamentary bequest for charity, and if it be admitted one could not be elected under the will, a court of chancery, to carry out the intention of the testator, would by a liberal in- tendment, appoint one. Every reasonable act will be done, and the most liberal construction of the will had, by a court of chancery, to aid the beneficiaries, when the intention is plain and undeniable.31 213. The doctrine of cy-pres. This doctrine is always ap- plied by courts of chancery ; it is a child of chancery born ages ago; the doctrine is used or applied for the express purpose 28 — Heuser v. Harris, 42 111. Hlinois the same principles and 425; Ingraham v. Ingraham, 169 rules have been applied, as laid 111. 432; Hoeffer v. Clogan, 171 111. down in the Heuser case, and 462. Hadley v. Hopkins Academy, 29 — Boyle on Charities, 238, 239. supra. Holden v. Cook County, 87 30—42 111. 425. 111. 275; Mills v. Newberry, 112 31— The following authorities 111. 123; Oilman v. Stone, 120 U. affirm the doctrine laid down in S. 586; Hunt v. Fowler, 121 111. the early case of Heuser v. Har- 269; Morgan v. Grand Prairie ris, supra (28); Hadley v. Hop- Seminary, 171 111. 453; Hoeffer v. kins Academy, 14 Pick. 240; Vidal Clogan, 171 111. 467; Ingraham v. v. Girard, 2 Howe. U. S. 127. In Ingraham, 169 111. 432; Garrison V, Little, 75 111. App. 411. CONSTRUCTION OF WILLS— CONTINUED. 153 of giving effect to charitable legacies. It is usually applied where charitable gifts are made by will, and where the par- ticular intention of the testator is impractical or illegal; when such appears from the interpretation of the words of the will, the equitable jurisdiction will be applied in this doctrine, for such courts consider charity as the substance of the doctrine ; and, when the mode pointed out by the will fails, the court will provide another mode by which the charity may take effect.^^ 214. In Heuser v. Harris, it is said:'"^^ "Another prin- ciple well established iSj that, if the bequest be for charity, it matters not how uncertain the person or the object may be, or whether the persons who are to take are m esse or not, or whether the legatee be a corporation capable by law of taking or not ; or whether the bequest can be carried into exact execu- tion or not; for, in all these and the like cases, the courts will sustain the legacy and give it effect according to its own prin- ciples, and where a literal execution becomes inexpedient or impracticable the court will execute it as nearly as it can ac- cording to the original purpose of cy pres. Charities are administered by the courts on cy pres principles for the very purpose of sustaining and carrying into effect the intention ; but they cannot change the object or place because the fund could be more judiciously and efficiently applied in another place, or to a different object. The doctrine of cy pres has no place in legacies to individuals, but^ in a charity like this, there is reason and good sense in presuming, as held in this case, had the testator known the election of a trustee, in the mode he proposed, his executing bond, and to serve as such gratuitously, he would have adopted another mode, and the court must act as he himself would have done, and this is the foundation of the doctrine of cy pres. An approximation to 32— Vidal v. Girard, 43 U. S. (2 of Sailor's Harbor, 28 U. S. (3 Howe) 127; Ould v. Washington Pet.) 99; Oilman v. Hamilton, 16 Hospital, 95 U. S. (5 Otto) 303; 111. 225; Heuser v. Harris, 42 111. Jones V. Habbersham, 107 U. S. 425; 2 Story's Eq. Jur., sections (17 Otto) 174; Inglis v. Trustees 1167, 1169. 33—42 111. 425. 154 THE LAW OF ESTATES. the intention of the testator, as near as possible, is all that is meant by this doctrine. And when the object is so plainly mani- fested, great latitude will be allowed in the selection of a trus- tee, or in a mode by which the intention can be carried into full effect. The counsel for appellants insist, that the bequest to "the poor of Madison County" is so general and vague, that it cannot be carried into effect. We think the principle above stated, and the cases referred to, fully settle this branch of the Case. That the term "the poor of Madison County" is vague, having no definite meaning, is so, in the sense in which appellant's counsel presents it. The poor of a county are, in legal contemplation; understood to be those who are dependent upon public charity; in other words, they are the paupers who are maintained by taxes levied on the people, or by the income from the public property. They are under the care and super- vision, in some counties, of the county courts, and in other coun- ties, of the boards of supervisors of the county, either of which is capable of taking a bequest of this kind as a trustee. 215. Power of sale under will. This power may be given by express words, or by implication. In the early case of Rankin V. Rankin, the court construing the will in question, fiaid:^* "No question can be, nor indeed is made, as to the 34 — 36 111. 296; Rankin v. Ran- which that instrument has im- kin, supra, one of the early cases pressed upon it. Where, therefore, in Illinois, held: That where a land is directed to be sold, and testator directs his estate to be its proceeds divided among cer- disposed of for certain purposes, tain persons named in the will, without declaring by whom the this is to be considered as a be- sale shall be made, if, in the ab- quest of money. And in such case, sence of such a declaration, the where the testator directed his proceeds be distributable by the ex- farm to be disposed of to the ecutor, he will have power by very best advantage, either in a implication. What ought to be body or divided into lots, and the done is considered in equity as proceeds thereof to be divided into done. Every person, therefore, five equal parts, and given to cer- claiming property under an instru- tain specified persons, but the tes- ment directing its conversion, tator did not declare or direct by must take it in the character whom the sale should be made, it CONSTRUCTION OF WILLS— CONTINUED. 155 intention of the testator that the laud should be sold. But it is urged that the executors had no power to make the sale. The court citing from Williams on Executors, p. 413: "It sometimes happens that a testator directs his estate to be dis- I^osed of for certain purposes, without declaring by whom the sale should be made. In the absence of such a declaration, if the proceeds be distributable by the executors, he shall have the power by implication. Thus a power in a will to sell or mortgage, without naming a donee, will, unless a contrary intention appear, vest in the executor, if the fund is to be distributable by him, either for the payment of debts or leg- acies." The principle is well settled, and is not controverted by the counsel for the defendant in error, but it is contended that the proceeds of the sale were not distributable by the executors. Again citing from Williams on Executors^ page 114: "It is an established doctrine in courts of equity, that the thing shall be considered as actually done, which ought to have been done, and it is with reference to this principle that land is under some circumstances regarded as money, and money as land." Nothing is better established than the prin- ciple, that money directed to be employed in the purchase of land, and land directed to be sold and turned into money, are to be considered as that species of property into which they are directed to be converted.^ ^ It follows, therefore, that every per- son, claiming property under an instrument directing its con- version must take it in the character which that instrument has impressed upon it ; and its subsequent devolution and disposition will be governed by the rules applicable to that species of prop- was held: That the bequest was in the later cases is supported by of money, and will be so consid- Toller on Executors, p. 301; 4 Bac. ered, as a fund distributable by Abr., 337, 425; 2 Blackstone's Com. the executors to certain legatees; 512; Fletcher v. Ashburner, 1 Bro. therefore the executors had power C. C. 497; Baker v. Copenbarger, to make the sale without invoking 15 111. 103; January v. Smith, 29 the aid of a court of equity. This 111. 116. decision which has been followed 35 — Fletcher v. Ashburner, 1 Bro. C. C. 497. 156 THE LAW OF ESTATES. erty. The land was directed to be sold, and its proceeds divided among certain persons named in the will. It was then to be con- sidered as a bequest of money.^^ The power of sale of real estate exists by or under the will only, it is restricted under the well settled rules for interpreting such instruments, to the intention and language of the testator. And where there is a doubt in the mind of an executor or trustee, it is the duty of such to seek the aid and advice of a court of equity before exercising the power of sale that is questionable.^'^ An estate was devised to be managed by devisees indefinitely, unless they desired to surren- der it to the executors for sale, which they could do by written agreement signed by at least two of them. The court in con- struing the will in question, held, that a disagreement among devisees as to such management, and their not conducting the estate as testator desired, did not operate to subject the property to sale, since that could only be done in the manner prescribed in the will.^s And so it is held, a clear power of sale conferred by will can be restricted only by subsequent explicit words. Courts will not interfere with discretionary powers of trustees except for fraud. Beneficiaries cannot disaffirm a sale by trus- tees and retain the purchase money; and the purchaser is not bound to look to the application of the money Avhere the trustees ' power of sale is discretionary.^'' 36— Rankin v. Rankin, 36 111. 39— Dickson v. N. Y. B. Co., 211 296. 111. 468, et seq. In Krutz v. Gray- 37 — Kenny v. Knoble, 51 111. bill, supra (37), under a will au- 121; White v. Glover, 59 111. 462; thorizing the executors to sell all Hughes V. Washington, 72 111. 84;, the real estate for the purpose of Werner v. Thornton, 98 111. 156; settling the testator's affairs, and Stoff V. McGinn, 178 111. 46; Gam- to turn the proceeds over to the mon V. Gammon, 153 111. 44; Hale testator's wife "after paying my V. Hale, 125 111. 399; Mulligan v. debts; and for this purpose I au- Lamb, 178 111. 130; Bauerle v. thorize my said executors . . . Long, 187 111. 475; Poulter v. Poul- to execute all necessary deeds to ter, 193 111. 641; Krutz v. Graybill, perfect such sales, and ... to 192 111. 445. make all such sales on such terms 38 — McFarland v. McFarland, and conditions as they . . . 177 111. 208; Illinois Land & Loan may deem proper, . . . except Co. v. Bonner, 75 111. 315. the farm on which Hugh Smith CONSTRUCTION OF WILLS— CONTINUED. 157 216. Sale of an heir 's expectancy. Such sale will be upheld where fair and proper; but it is considered a contract to con- vey the interest when it comes in esse. The heir inherits from the first ancestor, and there is no privity between them and their immediate ancestor. If after assignment the heir dies before the ancestor, as there was no interest in the heir's life- time, upon which the contract could operate, the heirs of the heir are not bound by the contract.'*'* An estate in expectancy now lives, and as to such farm I desire my executors not to sell the same until they can get $30 per acre." The executors, it was held, were not precluded from selling the farm so excepted until the price of $30 per acre can be had, but they may sell at the best price obtainable after waiting until such sale becomes necessary in order to pay the testator's debts. This case being decided upon the doctrine laid down in the case of Updike V. Thompkins, 100 111. 406, where it is said: "Particular expressions will not control where the whole tenor or purpose of the instrument forbids a literal interpretation of the specific words. Wills, like deeds, contracts and enactments, must be construed according to the intent of the maker, and that must be ascertained from an examina- tion of the instrument and all of its provisions." And in the case of Poulter V. Poulter, supra (37), it was held a power of sale will be implied where it is necessary to enable the executor to carry out the testator's intention. In that case, however, it was held the will did not confer power to sell, and none could be implied from the language thereof. The case is sup- ported by 11 Am. & Eng. Ency. of Law, 2d ed., 1043, and cases cited; 7 Am. & Eng. Ency. of Law, 2d ed., 466, and cases cited; Hale v. Hale, 125 111. 399; Gammon v. Gam- mon, 153 111. 41; 11 Am. & Eng. Ency. of Law, 2d ed., 1045. The provision of the will construed be- ing: "My land and all of the per- sonal property left," after the widow's death, "be equally divid- ed between all my children, less the following sums which have been paid to the ones named." Held, does not necessarily require a sale by the executor to carry out the terms of the will, since a court of equity has power, upon making partition of the land, when called upon to do so, to ar- range and adjust advancements, so as to carry out the provisions of the will. 40 — Simpson v. Simpson, 16 111. App. 174; Long v. Long, 19 111. App. 285; Kershaw v. Kershaw, 102 111. 307; Crum v. Sawyer, 132 111. 443; Gary v. Newton, 201 111. 170; Parsons v. Ely, 45 111. 235; Bishop V. Davenport, 58 111. 105; Galbraith v. McLain, 84 111. 379. This case arises on construction of deed, and contract between father and son, in consideration of a conveyance of land by the father to the son, that he will re- 158 THE LAW OF ESTATES. may be the subject of a contract of sale, and when fairly made and based upon a valuable consideration will be enforced by a court of equity .^1 217. Executor's interest. It has been repeatedly held by the Illinois courts that a trustee should never be the subject of criticism on account of the application of such to the chan- cery courts for advice in the discharge of his duty. And where the executor or trustee is in doubt as to what should be done, it is beyond question his duty to apply to a court of equity, that he may proceed with authority, that might be considered doubtful until the court had placed him right. If a person devise his or her lands to his or her executor to be sold, then there is a power coupled with an interest, for the executor takes possession of the land and of the profits. ^^ A testator devised all his property to G in trust; first, to pay his debts; second, to set off and pay to his wife such share of the estate as she was entitled to by the laws of Illinois; third, to hold the remainder in trust for his children. The trustee and executor was empowered to control and man- age the estate, and sell and convey all real and personal prop- erty, with power to execute conveyances therefor ; to invest the proceeds for the benefit of the children, as the trustee should deem best ; to use such portion as was necessary for their sup- port and education, and generally to use the same for the best interest of the children during minority. And, in trust further, that the trustee should convey the property, or the proceeds thereof, to the children when they should attain the age of twenty-one years. The court construing this will, held : That the will conferred ample power to sell and convey real estate, and a conveyance of a portion to the widow in lieu of her lease to his brothers and sisters 41 — Hudson v. Hudson, 222 111. all claim in expectancy to the res- 527. See Chapter 50 of this work, idue of the father's estate. Held, "Reversions and Remainders." the transaction was not with- (Post 852.) in the Statute of Frauds, nor con- 42 — Berger v. Bennett, 1 Caines trary to the provisions of the Stat- Cas. Exr. 15; White v. Glover, 59 ute of Wills. 111. 459. In this case it is held. CONSTRUCTION OF WILLS— CONTINUED. 159 dower and all claim on the estate, was presumed in the absence of fraud, to be for the best interest of the estate, and was within the power conferred by the will.^^ 218. Under the act of 21 Henry VIII., chapter 4, in forc6 in the state of Illinois, providing that the qualified and acting executor may execute the will when the others "do refuse to take upon him or them the administration and charge of the same testament and last will wherein they be so named as executors," does away with the old rule of common law before the act in question, that two or more executors can only act jointly in the exercise of the power. In the early case of Ward- well V. McDowell,*'^ the distinction between a power mandatory and discretionary, was discarded, and the current of the authori- ties sustained that finding, which was again affirmed in the case of White V. Glover.^^ 219. In Lambert v. Harvey,'^^ where the executor of a will is directed to sell the testator's real estate, and divide the pro- ceeds of sale between certain devisees, it was held: "The ex- ecutor takes only a power of sale, that being all that is necessary to execute the will, and no legal estate in the land." 220. The application of the statute of Illinois. Where there is no trust duties to be performed under a devise to executors in trust, the will can be executed under section 3, chapter 30, entitled " Conveyances. "*'' that a decree of a court of equity Waldon, 3 Hill, 361; McComb v. licensing the conveyance made, al- Waldon, 7 Hill, 335; Gregory v. though made without having jur- Henderson, 4 Taunt. 772; Oates isdiction, would not affect or v. Cooke, 3 Burr, 1684; 2 Jarman abridge the power conferred by on Wills, 199 et seq. the will. In this case the trustee 43— White v. Glover, 59 111. 459. was invested with a power coupled ., o-. tii oca with an interest, as he was au- thorized to sell the lands and to ^5— 59 HI. 459. hold and possess them for the pur- ^^ ^^^ I^^- 338. pose of the trust. See Waldon v. 47 — Starr & Curtis Annotated McComb, 1 Hill, 111; Bloome v. Statutes of Illinois, with Jones & 160 THE LAW OF ESTATES. Note. The matters in question being naturally connected with testamentary trusts and trustees, their powers and duties, we refer the reader to the subjects suggested in this work for more extended consideration. 221. Misdescription — surrounding cii'cumstances. It will be found the courts adhere closely to the rule "that extrinsic evidence cannot be heard to alter, detract from or add any- thing to the provisions of a will. ' ' Where the language is clear the construction must be on the face of the will itself; but in certain cases, where a latent ambiguity is found to exist, the court in order to uphold the will, and give effect to the inten- tion of the testator, will look to the surrounding circumstances and admit evidence to assist the interpretation. In the case of Bradley v. Bees, the text is nicely illustrated.'*^ The facts show the testator, at the time of making his will, had seven sons, four of whom were minors living with the testator ; the other three being men married and having families of their own; the will after devising a certain part of testator's land to his infant daughters, contained the clause, "the remaining lands owned by me to be divided between the four boys, ' ' with- out any other designation. It being held in construing the will, that the v/ordSj "the four boys," meant the four minor sons, who were at the time living with the testator as a part of his family; that there was no ambiguity on the face of the will, the inference therefrom being that he had but four Addington's Supplements thereto, larger tract. And it was held un- Vol. 3, p. 914, and cases cited; Vol. der rules of construction applied, 4, p. 254, and cases cited; also Vol. that proof by parol, that the testa- 1, p. 914; See Lawrence v. Law- tor directed the scrivener to draw rence, 181 111. 252; Barclay v. the will so as to give only forty Piatt, 170 111. 388; Ure v. Ure, 185 acres is inadmissible. As a mis- Ill. 228; Kirkland v. Cox, 94 111. take in drafting a will by the 400; Witham v. Brooner, 63 111. draftsman cannot be shown and 344. corrected upon parol evidence in 48 — 113 111. 327; Bradley v. such a case. See Worrell v. Pat- Rees. In that case the will de- ten, 69 111. 254, as to the correc- vised land, which by the words tion of mistakes in wills, used, embraced eighty acres in a CONSTRUCTION OF WILLS— CONTINUED. IGl sons; but on proof that the testator had seven sons, an am- biguity was made apparent, and, being a latent one, was ex- plained by parol evidence. Parol evidence not only of the previous facts known to the testator, and of present circum- stances, under which the will was made, but also his declara- tions, made at the time of making the will, as well before and after, might be resorted to, to remove the ambiguity, if any, and to fix the objects of his bounty. And, in the same case it was held: A devise of the "Southwest quarter of the north half of section 14, town 8, range 2 west, ' ' is not void for uncertainty in the description ; it being the same as the south half of the west half of the north half of the section; and if the section is a mile square, the description embraces eighty acres off the south side of the northwest quarter of the section. The fact that the testator did not own all of a tract of land devised by him by a good description, will not justify the court in holding the devise void. The devisee in such case will take so much of the land described as the testator did own. 222. In Bowen v. Allen, the subject of a devise was:^® *'My house and lot in the town of Potoka," succeeded by a particular description of a lot on which no house was situated. The court in that case permitted proof to be shown that the testator at the time of making his will had no other house in the addition to the town described; holding, the house identified was the house devised, and that the former de- scription being complete, the latter was a false demonstration only. 223. In Kurtz v. Hibner, the court held:^^ If the testator had described the property as his own the conclusion would havj been different. 224. In Kirkland V. Conway, the devise was :^i "My real estate, to-wit," describing property in the northeast instead 49—113 111. 59. 51—116 111. 439. 50—55 111. 514. 11 1G2 THE LAW OF ESTATES. of the northwest quarter, where it was in fact; held, that as the testator did not own the land described in the will, there was created a latent ambiguity, and the extrinsic circum- stances that he owned the other land, together with the words "my real estate," enabled the court to reject the quarter sec- tion as false demonstration, and apply the description without adding to the will. But in order to apply the rule of construc- tion, it was held, in the case of Holhrook v. Forsytlie,^- the land must be owned by the testator ; color of title will not suffice. 225. In Smith v. DennisMi,^^ the testator had established by agreement with a neighbor, a corner of a quarter section dif- ferent from the government corner, and the court considered this circumstance or agreement in construing the will. 226. In Kaufman v. Breckenridge,^^ a testator devised to his wife all his goods, estate and chattels, real, per- sonal and mixed, 'Ho have, hold and use the same so long as she might remain a widow," said goods, estate, etc., to be dis- posed of and used agreeably to her direction and approval, and in such manner as she "might deem most conducive to the welfare and comfortable subsistence of herself and chil- dren," who were mostly dependent on the testator for sup- port. The opinion in that case holds: Is it unreasonable to suppose that it was only the widow's estate for life or dur- ing widowhood in the goods and chattels, and not the goods and chattels themselves, which the testator intended she should sell for the support of the family. Item fourth, in pro- viding that no sale should be made of the homestead, ^ords some implication that power of sale of the whole property had been given, and that it was deemed necessary to make excep- tion of the homestead. It was objected that all of the extrinsic testimony as to the lands being unimproved and providing no income, and that relating to the testator's family, etc., was improper in the case. The court holding this objection is not 52—112 111. 310. 54—117 111. 305. 53—112 111. 372. CONSTRUCTION OF WILLS— CONTINUED. 163 well taken, rule 10 of the general rules of construction of wills, laid down by Jarman on Wills, is:'^^ The court will look at the circumstances under which the devisor made his will, as, the state of his property, of his family and the like. "We are of opinion that by this will the widow was clothed with power of disposition of the absolute estate in favor of herself and chil- dren; and, that by the exercise of that power her grantees took the fee, and not her mere life estate in the land." 227. Survivorship. The general rule in the state of Illinois, after an exhaustive review of English and American authori- ties, is laid down by the supreme court "as referring, not to the termination of the intermediate estate, but to the testator's death, unless a contrary intention is manifest from the will itself." The cases in this state hold to this general rule, and hy so doing have made the distinction between the technical and the literal meaning of the word "survivorship." To illustrate, take the ease of Duryea v. Duryea;^^ the words in the will construed were, "should either of my said children above named, depart this life leaving no issue him or her surviving, the share of the one so dying is to go to and belong to the survivor of them, his or her heirs and assigns forever," the court holding it must be conceded, we think, the words, cannot be construed as a limitation over, by way of an executory devise to the heirs of such devisee as shall predecease, accord- ing to any definition given in an executory devise, unless the word "survivor," as used, has the meaning of the word "other," and was used by the testator in that sense. There is no contention the word "survivor," in the first instance of the twelfth division of this will, is to be understood in its lit- eral sense of survivorship, and should the construction insisted upon be adopted, it would involve the testator in the absurdity of using it in the very next sentence in the sense of "other," which has always been regarded as an unnatural meaning, and one certainly not understood, except by persons familiar with 55— Vol. 2, p. 841. 56—85 III. 47. 164 THE LAW OF ESTATES. the subtle learning to be found in the books on this branch of the law. Unless for the strongest reasons, we ought not to adopt a construction that would involve the use of the same word in such widely different and even contradictory sense in the same paragraph. Text writers lay it down, the word ' ' sur- vivor, " when explained by the context, must be construed in its natural sense ; but when interpreted according to its literal import, the tendency would be to defeat the actual intention of the testator ; courts will readily listen to arguments drawn from the context, for reading the word "survivor," as synon- ymous with "other. "^''' 228. In Blanchard v. Maynard,^^ the will contained these words: "It is my will that at the expiration of the trust hereinbefore declared, that is to say, at the end of ten years after my decease, all my said estate then remaining, and the income thereof, shall be distributed and vest in my three sons," naming them, and their heirs; "and I do hereby give, devise and bequeath the same to them; but in case that either of my said three sons should die leaving no issue of their bodies, then I give, devise and bequeath my estate to the survivor of them." In giving a construction to this will, the court held : That no title under the will was intended to be vested in either of the testator's sons, until ten years after his death, and that the widow of one of the sons who died before that time, leaving no issue of his body, took no estate as heir of her husband, or dower as his widow, in the testa- tor's real estate. 229. In Arnold v\ Alden,^^ words of survivorship in a con- text, similar to that in the present will, have acquired a technical 57 — Jarman on Wills, p. 442; 2 pends upon the testator's inten- Redfield on Wills, p. 372, Sec. 2, tion. The word issue in that case, and cases cited. being construed as synonymous 58—103 111. 60. with "children" and the word 59 — 173 111. 229; Arnold v. Al- "issue," to include "grandchildren" den. In that case, it is held the must be qualified or otherwise ex- meaning of the word "issue" de- plained in some portion of the CONSTRUCTION OP WILLS— CONTINUED. 165 meaning, differing from the sense in which they are otherwise to be taken, referring the survivorship to the testator's own death,^*^ The weight of authority both here and in England, therefore, unquestionably is in favor of applying the term of survivorship upon the devise of a remainder, to the death of the testator, instead of the time of the termination of a particular estate, where it is necessary to give effect to the probable inten- tion of the testator in providing for the issue of the objects of his bounty upon the death of their parents before the time ap- pointed for the remainder to vest in possession ; especially where the devise is to the individual by name, and not to them as a class. Redfield on Wills gives the following ruler^^ "Where the gift is to specific persons, and not to a class, and it is provided, upon the death of one of them without issue, the share of such deceased person or persons shall go to the sur- vivor or survivors, it becomes very apparent that by survivor the testator must have intended to include the issue of such as predeceased those who died without issue. If this were not so, and those who died without issue died last, there would be no mode of giving effect to the gift over. "^^ 230. Charging legacies and debts on land. The general rule being, "that debts and pecuniary legacies are to be paid from the personal property, and, when there is a deficiency of personal property for that purpose, the legacies must abate, unless the testator charges his real estate with their payment. The charge upon the real estate may be made by express direc- tions to that effect contained in the will, but the intention of the testator to charge the real estate with the payment of the legacies may be implied from the whole will taken together.^^ will construed. The definite mean- 61 — Vol. 2, 3d ed., Sec. 15. ing of the word "children" in a 62— See holding to rule in Red- legal sense, denotes immediate field on Wills (nn^e 229) ; Bronson x)ffspring and will not be construed v. Hill, 31 Md. 181'; Austin v. Bris- to mean grandchildren unless a tol, 40 Conn. 120. strong case of intention or neces- 63 — Heslop v. Gratton, 71 III. sary implication requires it. 528; Williams v. Williams, 189 111. 60— Moore v. Lyons, 25 Wend. 500. In this case construing the 119. 166 THE LAW OF ESTATES. 231. It is a general rule, well established by both English and American authorities, that where legacies are given gen- erally, and the residue of the real and personal estate is after- wards given in one mass, the legacies are a charge upon the residuary real estate as well as the personal estate.^'* 232. In Eeid v. Corrigan,^^ the court quoting from Duncan V. Wallace, say: "Where a testator gives legacies, and so dis- poses of all his personal property that it cannot be made availa- ble for the payment of the legacies, the natural presumption is, that he intended to charge the land with the payment of the legacies, since a different rule would attribute to him a purpose to make a gift in appearance and not in reality." In Eeid v. Corrigan, it is held:^^ If the residuary clause in this will had read "all the rest, residue and remainder of my estate or prop- erty," it would scarcely have been questioned, that the testator only intended appellees to have so much of the rest of his real estate, as remained after the payment of the legacy to appellants. Under the law the personal estate vests, upon the death of an in- dividual in his personal representatives, and at once is the nu- cleus to create a fund for the payment of his debts, and in no manner by will can he divest his estate from administration. The personal estate being the primary fund for the payment of debts in Illinois, it is usually exhausted before the real estate is touched for such purpose. 233. In Bucher v. Bucher:^'^ There was a devise of land and all personal estate not otherwise disposed of, after will it is held: Where a testator upon residuary real estate. The bequeaths legacies to his various decision follows the cases of Reid sons and daughters, which aggre- v. Corrigan, 143 111. 402, and Dun- gate more than the amount of his can v. Wallace, 114 Ind. 169. personal property, and devises 64 — 13 Am. & Eng. Ency. of "the rest, residue and remainder Law, 1st ed., p. 117; and cases of my estate . . . to my sons cited in notes, and daughters, to share and share 65 — Reid v. Corrigan, 143 111. alike," such residue is given in 402; 114 Ind. 169. one mass and legacies are a charge 66—143 111. 402. 67—86 111. 381. CONSTRUCTION OF WILLS— CONTINUED. 167 payment of debts, to the widow, who was the executrix under the will; the court in that case applied the general rule "that the executor or administrator has no concern with the real estate; that he is not entitled to receive the rents and profits, for they belong to the heirs or devisees; and that the only power of the executor or administrator with respect to the realty, is, as given by the statute, to petition the court for leave to sell it for payment of the debts of the estate, and to make sale of it for such purpose upon license given." This is no more than the law itself declares. It makes the land of a decedent subject to, and liable for, the payment of debts when necessary. The expressions of the will, we consider, adds nothing to the law in this regard. The power and duties of the executrix, as executrix, in respect to the application of real estate or the rents and profits of it to the payment of debts, were no greater, and none other, than they would have been under the law, without the will. It was our duty to ascertain the object and meaning of the statute, from the act itself and from other acts in pari materia. The interpretation should never lead to an absurdity, nor defeat the object of the law. Ordinarily the personal property of a deceased person is the primary fund for the payment of debts; but, unless in this particular case the provisions of the statute are to be regarded as having modified the rule, then the statute as to nuncupative wills, will often be inoperative, though the de- ceased may leave property sufficient to fulfill his will as well as to satisfj'' his creditors. In the case in question, the testa- tor indicated most unmistakably his intention to exempt his personal estate from the payment of his debts, and this inten- tion should be given effect. In this case the personal estate has been disposed of, subject to the payment of debts, if the real estate prove insufficient. A just and true account may therefore, be rendered of it by the administrator, within the sense and spirit of the statute. We think that the creditors should first exhaust the real estate, and in this way the entire law is maintained, the rights of all the parties preserved, and 168 THE LAW OF ESTATES. the disposition of the personalty by the deceased is firmly fixed. 234. In McCidlom v. Chidester,^^ a nuncupative will, reduced to writing and probated as required by statute^ gave testator's personal property to W. The latter being ap- pointed executrix gave bond with security ; the bond being ap- proved the executrix took possession of the personal property and used it as her own under the terms of the will ; afterwards the original letters were revoked, and an administrator de ionis non was appointed, and suit commenced upon the bond of the executrix. The testator died seized of unincumbered real estate of the value of $2,000 and debts of $241.00 was allowed against the estate. The court construing and giving effect to the will say : It is a universal maxim that the design and intent of the framers of the law shall prevail. It will be noted in this case, the real estate is nearly ten times the value of the debts allowed, and, that such real estate was unincumbered and not chargeable with any legacy; and, of course was liable to be converted into a fund to pay just claims against the estate by following the directions of the statute. The reasoning of the court under such conditions, being, the creditors had no right to resort to the personalty, for in such case, the devisee would be deprived of all benefit under the will, and the intention of the testator not carried out. Con- cluding as the court does in these words: "A rule of law which has no application, by reason of the facts, should not operate such marked injustice, without being necessary for the protection of creditors." 235. Miscellaneous cases charging debts and legacies. It will be noted in examining the cases cited, where the courts 68—63 111. 477. McCullom v. 9 Peters, 461; Trimmer v. Rayne, Chidester given at some length is 9 Ves. 209; Aldrich v. Cooper, 8 an important case in support of Ves. 382; Selby v. Selby, 4 Russ. the text. The opinion in that case Eng, Ch. 336, which has been ap- by Justice Thornton followed the plied in similar cases ever since, doctrine of Burtou v. Knowlton, 3 See authorities {ante 227, 228, 229, Ves. 107; Fenwick v. Chapman, 230, 232, 233). CONSTRUCTION OF WILLS— CONTINUED. 169 are called upon to construe a will, they always endeavor by the modern rules to uphold the will and give it effect; they never set the same aside in whole or in part, where it is pos- sible by the instrument, aided by well established ancient and modern rules to sustain the will. The fundamental rule of interpretation, which controls all others is applied to arrive at the intention of the testator, as gathered from the entire will, and all the words, expressions and phases thereof. And so the miscellaneous cases are cited to indicate the modern mode of construction and the necessity of these modern rules as applied in furtherance of the intention of the testator. 236. In Johnson v. Johnson,^^ it was held: a charge may be placed upon the life interest of a life tenant, and under the con- struction given the will in that case, the life estate could not be enlarged to a fee. 237. In Stickel v. Crane,''^ the testator bequeathed to his wife all his personalty and $3,000 to be raised and paid as directed in the will; and to each of his children $50, to be raised in the same manner. The will authorized his ex- ecutrix, his widow, "to sell and convey, or not to sell, at her discretion, any and all the real estate at such time or tiines, and on such terms, as she might deem best for the estate, and out of the proceeds, if sale was made, she was directed to pay legacies, the residue of the proceeds to be safely invested." At the death of his wife the testator directed, that such of 69 — 98 111. 570. tate is afterwards given in one 70—189 111. 210. Stickel v. mass, the legacies are considered Crane. In that case the general a charge on the residuary real as rule is given, viz.: In the absence well as personal property. Lewis of an expressed intention to the v. Darling, 16 Howe, 1; Smith v. contrary, legacies are payable pri- Fellows, 131 Mass. 20; Wilcox v. marily out of the personal estate, Wilcox, 13 Allen, 252; see also yet it is a rule of property, both cases cited in 13 Am. & Eng. Ency. in England and most of the courts of Law, p. 117; Greeville v. Brown, of this country, that if legacies 7 H. L. Cas. 697; Sloan v. Graham, are given generally, and the resi- 85 111. 26; Etelmesser v. Ebelmes- Que of the real and personal es- ser, 99 111. 541. 170 THE LAW OF ESTATES. his real estate as remained undisposed of, and the proceeds of such as had been sold, should descend to his children. Held, that the legacies to his wife and children were vested, and at once became a charge on all his real estate, and so remained until satisfied, though the executrix in that case made no sale to satisfy the legacies. 238. In McFarland v. McFarland, it was heldr'^i Where legacies are made a charge on the real estate devised, the dev- isees can not complain, that such charges are fixed as a lien, and given preference over other liens. 239. In Daily v. Wilkie, it was held,'^^ t^g ^yjn in that case, directing the payment of money, creates a charge, and a court of equity will enforce the lien of a legacy so charged, subject to the terms and conditions as limited by the provisions of the wall. 240. In Irwin v. Walpert,'^^ where the will directed an an- nuity to be paid out of the rents and profits, such devise does not create a charge upon the coipus of the land. But where the will under construction creates a charge upon the realty such is protected as a lien.'^a 71 — 177 111. 208; McFarland v. implied to confer a fee if the pay- McFarland. Under that case the ment of a debt or legacy was rules of 3 Washburn on Real charged upon the devisees per- Property, 5th ed., 563; and sonally. The McFarland case fol- Schouler on Wills, p. 592, are giv- lowing the rules cited, and the en and applied. In Washburn "If doctrine in harmony therewith the terms of a devise clearly in- laid down in the cases of Funk dicate an intention in the devisor v. Eggleston, 92 111. 515; McClel- to dispose of his entire estate in land v. Turner, 15 Me. 463; Var- the property devised, it will be ner v. Stevens, 22 Me. 331; Harvey construed to convey a fee." In v. Olmstead, 1 N. Y. 483; Snyder Schouler: "Whenever, expressly v. Nesbeth, 77 Md. 576. And see or by implication, the will shows also Illinois Land and Loan Co. v. the purpose to give one's property Bonner, 75 111. 315. in fee simple, that purpose shall 72 — 111 111. 383. prevail." At common law, though 73 — 128 111. 527. a devise contained no words of 73a — Bailey v. Bailey, 115 111. limitation or inheritance, it was 555. CONSTRUCTION OF WILLS— CONTINUED. 171 241. In Richardson v. Banson, it is held,'^^ a testamentary disposition of real estate, or the rents of the same, is null and void as to the creditors of the testator. 242. In Richardson v. Eveland, the rule from 1 Pomeroy's Eq. 554, as follows is appliedJ^ "The will remaining ambula- tory, a subsequent gift or advancement by the testator to the leg- atees, with the intention that it should be in lieu and discharge of the legacy, would be an ademption thereof, and in such case the particular legacy adeemed would be removed or taken away by the act of the testator. In the same case, the rule from 1 Roper on Legacies, is applied. "That if there be a grant or devise of the beneficial interest in lands charged with the payment of debts or legacies, and not upon express trust to pay the same, the grantee or devisee is entitled to the surplus remaining after dis- 74—90 111. App. 258. 75—126 111. 42; Richardson v. Eveland. In that case the testator owning between four and five hun- dred acres of land, devised to his son one hundred and ninety acres thereof, subject to the payment of the sum of $5,000 to the testator's seven daughters, and then devised the sum so charged, with the resi- due of his estate, real and person- al, to the daughters. Afterwards, the testator conveyed a part of the same and other lands to the son, a part of which was stated in the deed to be subject to the charges and conditions named in the will, and still later, sold to a third par- ty one of the tracts devised to the son for $5,600, and he then gave to each of his daughters $2,500 and to the son $10, unaccompanied with any declaration or statement of his intent in so doing. Held, in such case the payment to the daughters was not to be taken as an ademption or satisfaction of the legacy of $5,000 to the daughters, and that the son was bound to pay that sum to his sis- ters. (See authorities on which opinion is based in Richardson v. Eveland, supra, page ^4.) It ap- pears the court applied the rule supported by authorities in Wig- ram on Wills (2d Am. ed.) 161, holding: "Where, as here, the gift is unaccompanied by any written instrument, the declarations and conduct of the testator in respect of the subject matter being con- sidered, and in breaking in upon the portions as fixed by his will, from which an inference of his intention in making the gift can be logically and legitimately drawn, are competent to be con- sidered, whether contemporaneous with or prior or subsequent to the gift," citing Richards v. Humph- reys, 15 Pick. 133; Howz v. Mal- let, 4 Jones' Eq., 194; 1 Pomeroy's Eq., 564; 1 Roper on Legacies, Chap. 9, Sec. 1, Chap. 12, Sec. 1. 172 THE LAW OF ESTATES. charging the debts and legacies charged ; and if the charge fails, the advantage accruing from such failure will enure to his ben- efit." Thus it will be observed the donee takes the surplus after the charges are satisfied ; but under a gift in trust to pay a cer- tain legacy, the donee does not. 243. Charges upon gifts election applied. The rule adopted by the Illinois courts, is to the effect, that where the legacy is to a stranger, the intention of the testator to satisfy the legacy by a subsequent gift (unless the legacy and gift be for the same specific purpose), must be expressed; and will arise upon construction of express words of the donor, in the instrument, unaided by any presumption in favor of the sat- isfaction of the prior legacy. Again, if the relation of the donor be that of a parent, the presumption at once arises, that the subsequent gift, if ejusdem generis, w^as intended to be in satisfaction of the prior legacy, based upon the equitable presumption that a parent, or one standing in loco parentis and owing a like natural duty to all of his children, would not, after having voluntarily established the portion each should receive of his estate, take from one to his detriment, for the purpose of benefiting another. The rule being created by courts of equity, on account of their leaning, against double portions, and to facilitate the equitable distribution of estates.'^® The doctrine seems to be settled, that if a legacy be given by a parent or one standing i7i loco parentis, and the testator after- wards makes an advancement or gift, of money, or property ejusdem generis, to the same beneficiary^, the presumption will arise that the gift was intended in satisfaction or substitution for the prior legacy, and imless the presumption be rebutted, an ademption in full, or pro tanto, as the gift is equal to or less than the prior benefit, will take place. But this rule resting upon a presumption of fact, that is, — the intention of the testator or 76 — Sussie v. Lowther, 2 Hase, 424; 1 Pomeroy's Eq. 554; Roper on Legacies, Chap. 9, Sees. 1 to 12. CONSTRUCTION OF WILLS— CONTINUED. 173 clonor, — extrinsic evidence is admissible to aid or rebut tlie presumption.'^^ 244. Doctrine of election applied to dower and other rights. Chief Justice Marshall, in I/ubert v. Wren, said:^^ "It is a maxim of a court of equity not to permit the same person to hold under and against a will. If it be manifest from the face of the will, that the testator did not intend the provisions it con- tains for his widow to be in addition to her dower, but to be iu lieu of it, if his intentions, discovered in other parts of his will, must be defeated by llie allotment of dower to the widow, she must renounce either her dower or the benefit she claims under the will. ' ' In Birmingham v. Kirwan,'^^ Lord Rosedale said : ' ' The rule of election seems to me to apply to every species of right, and I cannot find the right of dower is more protected than any other; the assertion by the widow of a right of dower in the house and demesne, would be inconsistent vnth. the dispo- sition of the house and demesne contained in the will, and therefore the widow cannot have both." The doctrine was first applied to its full extent by the Supreme Court of Illinois in Williams v. Wilbanks;^^ and, again in the early case of Brown V. Pitney ;^^ in which the court said: "Let us apply these well settled principles to claims of dower in this state, where the hus- band has died leaving a will. In such cases, under our existing statute (1845), which is the law now or since the statute of 1872, if the will devise land to the wife, such devise is of itself a bar of dower, unless otherwise expressed in the will; but the 77 — Cooper v. Cooper, L. H. and charges such with the legacy. €han. 813; Wigram on Wills, 2 Langworthy v. Golden, 28 111. App. Am. ed. 161. The lull and elabo- 119; Cashman's Estate, 28 111. App. rate discussion of rule cited, and 346; Irwin v. Wallpert, 128 111. the application of the same will 527; Bailey v. Bailey, 115 111. 555; be found in Richardson v. Eve- Decker v. Decker, 121 111. 341; land, 126 111. 37 (ante 242). It Caruthers v. McNeil, 97 111. 256. is held by the Illinois courts that 78 — 7 Cranch. 370. where the personal property is in- 79 — 2 Schoales & Lefroy, 444. sufficient to pay a gift or legacy, 80 — 18 111. 17. a lien attaches to the real estate 81 — 39 111. 468. 174 THE LAW OF ESTATES. widow may nevertheless renounce the will and claim her dower. On the other hand, a bequest of personalty does not, of itself, like a devise of realty, bar the dower, since the revision of 1845. 245. Election express and implied. Election is said to be of two kinds, express and implied; the implied election is also called equitable election, for the reason that it rests upon the equitable principles stated above; while an express election arises from the terms of the will.^^ j^ Cowdry v. Hichcock, it is held:*^ A gift in lieu of dower and "of all other rights, in- terest and claims" in the estate will put the widow to an elec- tion, even before she can accept the statutory award.** 82 — Bispham's Principles of Equity, Sec. 296; 2 Roper on Lega- cies, 1583, et seq. 83—103 111. 262. 84— Wooley v. Schrader, 116 111. 37; Ditch v. Sennott, 117 111. 362; Graham v. Dodge, 122 111. 534. In Ditch V. Sennott, supra, it is held, the doctrine of election does not apply where the testator has but a part interest in an estate which he devises; but even in such a case, if it is apparent from the terms of the will that the testator intended to devise the whole es- tate, including the interest of a third person, then the doctrine will apply as to such third per- son, if a devisee. See rule and authorities cited on page 367 of that opinion. The clause of the will construed in the Ditch v. Sen- nott case, supra, is substantially where the testator owning but an individual interest in certain lands, by his will devised the whole estate as follows: "I give and bequeath to J. S. one hundred and fourteen acres of land (de- scribing it), to be set off to him so as to include all the land I own in said claim and survey, except the part of the same already re- served for A. M., and also to in- clude all the lands in said quarter section which I own lying south of the road recently located from T., to East Prairie Union Church." Held, as the words "own" did not refer to the undivided interest of the testator, but to the extent of the entire claim in the survey, as appears from a prior clause de- vising a part of the claim to A. M., that it was evident the testa- tor intended to devise, not the un- divided interest in the claim and survey, merely, but the whole es- tate. In the case of Gorham v. Dodge, supra (84), a testatrix be- queathed to her daughter $700, and devised her homestead to her son, and the daughter accepted the bequest to her, it was held, that the latter was thereby estopped from enforcing the specific per- formance of a parol agreement of the testatrix to give the home- CONSTRUCTION OF WILLS— CONTINUED. 175 246. Ademption of legacies. The doctrine is generally ap- plied, when, in the construction of a will, it appears, a subse- quent gift or advancement by the testator to the legatee has been made, with the intention that it should be in lieu and discharge of the legacy. The court in such case, under the fundamental rule of construction, will look to the words, phases and surrounding circumstances, to arrive at the inten- tion of the testator; and when an ademption is established, it may operate to satisfy in whole or in part the legacy to which the doctrine is applied.^^ 247. In Richardson v. Eveland,^^ it was contended that the gift or advancement of $2,500 to each of the testator's daughters, on the occasion of the family reunion in celebration of the 68th birthday of the testator, was an ademption of the devise of $5,000 to said daughters, jointly, made by his will a charge upon the land devised to the appellant, to be paid by him to said daughters within one year after the testator's death. The court determining whether an ademption has taken place, or the doctrine relating thereto applicable, always ob- serves whether the donor stands in the place of a parent, or as a stranger to the donee ; also, if there are words accompany- ing the subsequent gift, sufficiently expressed to show an in- tention on the part of the donor, so the latter benefit should be in substitution of the former. In case the legacy is to a stranger, the intention of the testator to satisfy the legacy by a subsequent gift (unless the legacy and gift be for the same specific purpose), must be expressed. The question then arises upon construction of the express words of the donor, unaided by any presumption in favor of the satisfaction of the prior legacy. If the relation of the donor be that of parent, the pre- sumption at once arises, that the subsequent gift, if ejusdem generis, was intended to be in satisfaction of the prior legacy. stead to the daughter on the death The doctrine of election in that of the former. Having elected to case being applied, take under the will, the daughter 85 — 1 Pomeroy's Eq. Jur., Sees, could not set up a claim which 524-557; 1 Roper on Legacies, 365. would defeat the devise to the son. 86 — 126 111. 37. 176 THE LAW OF ESTATES. It is said the rule was created by courts of equity on account of their leaning against double portions, and to facilitate the equitable distribution of estates. 248. The application of the word "money" as used in will. The general rule is, "that a simple bequest of money, in the absence of any thing in the context to show that the word 'money' is used out of its ordinary or popular signifi- cation, will not include personal estate in general, but will be confined to money strictly so called. '"^^ In Decker v. Decker, it is said :^^ * ' On the other hand, it is equally clear that the word 'money' or 'moneys' is often employed in making testamentary disposition under circumstances hardly distinguishable, in the general sense of property or personal estate. When the term is thus used, it most generally has reference to the residue of the personal estate after certain charges upon it have been satis- fied; such as the payment of funeral expenses and the like. Moreover, an examination of the cases will show, that gener- ally, where this construction has been adopted, the contrary view would have resulted in leaving a portion of the testator's estate undisposed of by will, — a view which courts are always disinclined to adopt, on the ground that it is contrary to the presumed intention of the testator." After applying the rules, it is held in the Decker case, that the term "money" in the connection used, was intended to express the residuum of the personal estate after the payment of all debts and funeral expenses; this is strongly fortified by the implication arising from the use of the qualifying word "remaining." 249. Per capita and per stirpes. The rule is established in construing a will, that where a legacy is to the children of several persons, such take per capita. A devise of an estate "to be divided equally among my heirs at law," not naming them, has reference to the statute of descent, and heirs will take per stirpes.^^ The rule established by the Supreme Court 87 — Williams on Executors, Sec. 89 — 2 Jarman on Wills, 34; 2 1190. Story's Eq. Jur., 289, and notes. 88—121 111. 347. CONSTRUCTION OP WILLS— CONTINUED. 177 of Illinois in Richards v. Miller ^^ is to the effect: That when the statute is invoked to ascertain the persons who take a devise or bequest by a general description, its provisions as to the quan- tity each shall take must also be observed. In Kelly v. Vigas,^^ it is said: "Who are heirs of a deceased person are determined and declared by statute, and the quantity each shall take as heirs, is also fixed. Observing these rules of construction, it would seem the residue of the estate of the testator should be divided in accordance with the provision of the statutes of 'descent' as in case of intestacy." In the case of Kirkpatrick v. Kirkpatrick, it is held :^2 ' ' There is nothing in the will to indicate the devise to the 'heirs' of the testator, and whether it was to be taken other than as such an heir would take under the statute. In such state of the case the devisees take per stirpes." 250. Residuary bequests and legatees. It often occurs, that a testator makes special bequests to some of his heirs, and then bequeaths equally the residue of his estate to all of them. Good reason often exists for such a disposition of an estate. Or it may be the intention of a testator to make more ample provi- sion for one than the other; or the love and affection which prompts the devise may be stronger in one case than another. Some one child may have larger advancements than the others, which often makes it necessary to increase to the one to equal an advancement to the other. The residuary legatee or lega- tees take that which is left after all other legacies and debts have been satisfied, and, in case the personal assets are not sufficient to satisfy the personal bequests, it will be presumed that it was the intention of the testator, where in the residuary clause of the will, real and personal estate are commingled, to charge them on the real estate bequeathed under the resid- uary clause.^2 90—62 111. 417. 191 111. 296. Also 2 Jarman on 91—112 111. 242. Wills, 756, and cases cited. 92—197 111. 144. See also the 93— Richards v. Miller, 62 111. following case: Auger v. Tatham, 417; Dearlove v. Otis, 99 111. App. 99. 12 178 THE LAW OF ESTATES. 251. To whom the residuary estate shall go. This is al- ways a matter to be taken from the will or the language thereof, and the construction such language will receive by the courts.^* If the devise of the residue of the estate is to dev- isees by name, they take the residue as named. ^^ On the other hand, if the devise is to ''my heirs at law" such heirs are de- termined by the statute of descent.^^ In the case of Hale v. Hale,^'^ it was determined the following clause in a foreign will passed real estate in Illinois, viz.: "As to the residue of all my estate, both real and personal, not herein otherwise dis- posed of." The record shows that the testator, domiciled in Massachusetts, owned a large estate in that State, and lands in New York and Illinois. The will in question had been con- strued by the Court of Appeals of New York, which held the 22d paragraph thereof, relating to the residue, so far as it ap- plied to real estate in that State, worked an unlawful suppres- sion of the powers of alienation, and was, for that reason, void. And it was also held by that court that such clause was re- pugnant to the provisions of the statute of that State prohibit- ing accumulations, except for the times and purposes therein permitted. The point being, that the will postponed the final division of the estate until the death of the last survivor of the life annuitants. The Illinois court construing the same clause of the will in question, say: Primarily, the words "all my estate," mean all the estate of testator wherever situated; and that meaning will always be given to them, unless something in the context will show a more restricted construction will better comport with the clear intention of the testator. The same words in the will that are held to constitute a devise of land in New York, include also the lands in Illinois. Either the lands in both states are devised, or they must be treated as in- testate property in both states. It is incredible that a testator, say the Illinois court, making a will that by its terms, when 94— West V. Fitz, 109 111. 438; 96— Kelly v. Vigas, 112 111. 245. Kelly V. Vigas, 112 111. 245-246. 97—125 111. 408. 95— Pitney v. Brown, 44 111. 363. CONSTRUCTION OF WILLS— CONTINUED. 179 understood in their primary sense, disposes of all "his estate, both real and personal," omitted therefrom property conceded to be of the value of over $1,200,000. Siieh a proposition is too improbable to be adopted, unless the testator was incapable of comprehending what he was doing. Plainly, the residuary clause of the will is broad euough to include all the property of the tes- tator, no matter where situated, and there is nothing in either of the attendant circumstances or in any other clause of the will, that shows any intention on the part of the testator to omit any property in Illinois, or elsewhere, from its operation. It is also held by the latter court, that a will, postponing the final disposi- tion of a part of an estate until after the death of certain life an- nuitants, which ma.y not occur for forty or even sixty years, is not invalid, as contravening any rule of public policy ex- isting in the State of Illinois. And so it is held, a lapsed legacy goes to the residuary legatee, if one; if none, to the next of kin.98 A will bequeathed a specific legacy, payable as soon after the testator's death as practicable, and to the same person a further sum "to be paid out of my residuary estate upon final distribution" and a further clause by which the testator de- vises the residuary estate in trust for his two daughters until they become of age, when it is to be divided between them, subject to the charge in favor of the widow and the bequest made by the will. Held: In such ease the payment of the residuary legacy is postponed until the final division of the estate between the two daughters.^^ 252. Abatement — Suits to collect. Section 16, chapter 3, entitled "Administration of Estates," relating to administra- tors to collect, provides : "Every such collector may commence suits for debts due to the decedent, and release the same on payment thereof; and no such suit shall abate by the revoca- tion of his letters, but the same may be prosecuted to a final 98— Mills V. Newbury, 112 111. 99— McDevitt v. Hibben, 221 111. 123. 234. 180 THE LAW OF ESTATES. decision, in the name of and by the executor or administrator to whom letters testamentary or of administration may be granted.^ Administrators de honis non and executors, who have a duty to perform in connection with the property disposed of by will, requiring a construction of the will, and a sale of the property, may file a bill, on which the court may construe the will.^ The rule pertaining to abatement, arises, generally, where it is necessary to construe a will to ascertain whether there is in the language of the will a general legacy or a specific legacy, intended by the testator. In Rexford v. Bacon,^ con- struing the will in question, the court adopted this rule: "Specific legacies do not abate in favor of general legacies (referring to clause 7 of the will), and it should not be held 1 — Starr & Curtis Annotated Statutes of Illinois, with Jones and Addington's Supplements thereto; Vol. 1, p. 274; Vol. 4, p. 31; Kurd's R. S. of 111., 1905. same section and chapter, p. 107. 2— Stoff V. McGinn, 178 111. 46; Parsons v. Miller, 189 111. 107. In Stoff V. McGinn, supra, page 55, it is said: But if L — as adminis- trator, had a duty to perform in connection with the property which required a construction of the will and which rendered it necessary that a sale should be made, he was fully authorized to file the bill, and the court might properly construe the will on his application and appoint a trustee to sell the land. (Wenner v. Thornton, 98 111. 156; Longworth V. Riggs, id. 258.) Even if it should be held that he was not entitled to bring the suit, it would not show a want of jurisdiction or ren- der the decree a nullity, but it would be merely erroneous and must be corrected in a direct pro- ceeding. In Parsons v. Miller, supra, it Is held: The construc- tion of wills being a recognized head of equity jurisdiction, the power of equity to entertain a bill by an executor to construe a will must be questioned in the trial court, where the objection to jur- isdiction is that no trust was in- volved. And where a controversy has arisen between executors as to how the proceeds of personal property in their hands shall be distributed, to determine which a construction of the will is neces- sary, it is proper for the executor to file a bill for the construction of the will in order to protect him- self in the execution of his trust. See Foster v. Adler, 84 111. App. 655; Miller v. Kingsbury, 28 111. App. 532. 3—195 111. 70; 18 Am. & Eng. Ency. of Law, 2d ed., p. 714, and cases cited. CONSTRUCTION OF Yv'ILLS— CONTINUED. 181 to abate in the same proportion as such general legacies given under the same clause." The provision in the will construed was: "All moneys and property which I may have heretofore or which I may hereafter during my life advance, loan or give to my sister, are to be hers absolutely." The language used being held a confirmation of all ante mortem gifts and creates a specific legacy, which can only be satisfied by the delivery of the notes and mortgages representing such loans; and, con- sequently, which does not abate proportionately with the gen- eral bequests given by the same clause of the will.* 253. Presumption of death if party not heard from in seven years. The presumption of life ceases at the end of seven years, from the period when he or she was last heard from. The general rule holds, with respect to persons away from their usual places of resort, and of whom no account can be given. At what particular time a party died, is of no im- portance to a person claiming a right which becomes estab- lished on a death, but it may be very important to one resist- ing that right, and so, it becomes an affirmative fact, which the party alleging must prove; and the party whose interest it is to show, that a person was living within the seven years, is at liberty to show it by such facts and circumstances as will inspire that belief in the mind of a court or jury. Where a person was not heard of from the 21st of March, 1852, to the 21st of March, 1859, it was held, that the presumption of law is, that he was dead on the 21st of March, 1859, being seven years from the time he was last heard of.^ The question often arises, and becomes extremely important as a governing fact, where a legacy is given to one, and the heir, a residuary legatee or devisee, questions whether he was not dead at the time of the testator's decease; it often means the passing of an interest and possibly an entire estate, in a manner not intended by the testa- tor. Who should inherit, may make it necessary to fix the exact hour and day of death ; for it is held, "if the legatee died before 4— Rexford v. Bacon, 195 111. 70. 5— Whiting v. Niccll, 4G 111. 230. 182 THE LAW OF ESTATES. the testator, the legacy, unless given to a child or grandchild, would lapse, in the absence of a special provision in the will to meet such a contingency and would go to heirs, residuary legatee or devisee."^ The exact date of death or the legal presumption of death, generally becomes important, when the testator's estate is distributed, and then, as between his heirs and legatees. At the expiration of seven years, the presumption of death arises by law, so that the absentee is to be treated and accounted as dead, just as the common law regarded him or her living until death was proved; and, as a matter of right and of equity, the relation of parties affected by his or her life or death are to be determined by these technical presumptions.'^ Lawson in his work on Presumptive Evidence, in stating what circumstances, if proved, will overcome the presumption of the continuance of life lay down the following rule: "That within that time he was in a desperate state of health." {Rule 49.) "That his habits, character, domestic relations or neces- sities would have made it certain that if alive within that period he would have returned to or communicated with his residence, home or domicile." {Rule 52.) So it is held, the age, habits of life, habits as to the use of stimulants or drugs, and, indeed, any condition from which a presumption as to the continuance or destruction of life would arise, are proper to be considered. So also, where one has lived an upright life and enjoyed the confidence of his acquaintances, is successful in business, attached to his family, contented, and fond of the associations of home, it is to be fairly presumed that if alive he would speedily return, or at least communicate with the objects of his affection. On the other hand, if his relations with liis family were strained, if he was in straitened circum- stances, unhappy, and discontented with his surroundings and 6— Whiting v. Nicoll, 46 111. 230. Clark v. Canfield, 15 N. J. Eq. 119; 7 — Johnson v. Johnson, 114 111. Burr v. Lyon, 14 Wart. 150; Han- 611; Reedy v. Millizen, 155 111. cock v. Am. Life Ins. Co., 62 Mo. 636; see also Lawson on Presump- 2G; Dean v. Bittenger, 62 Mo. 101; live Evidence, rule 43, p. 202; Whitehead's Appeal, 23 Pa. St. 114. CONSTRUCTION OF WILLS— CONTINUED. 183 associations, the likelihood of his return or communication would naturally be much lessened.^ 254. In Heintz v. Ahlgren, it is held:^ In order to enforce the presumption of the death of a person after an absence of seven years, there must be evidence of diligent inquiry at the person's last place of residence, and among his relatives, and any others who probably would have heard from him, if living. Long absence alone, no matter how long con- tinued, is not sufficient to raise the presumption of death. There must be shown an absence of seven years or more from the established residence of the party, before the presumption of death can be raised. 8 — Reedy v. Mulligan, 155 111. large, ante 69 ) . Where a lapse is 636; Webster v. Blrchmore, 13 found to exist, under the statute Ves. 362; In re Hall, 1 Will. 85; the estate goes to heirc. Summers Tisdale v. Conn. Mut. Ins. Co., 26 v. Highley, 191 111. 193. The courts Iowa, 170. of Illinois will vest an estate of 9 — 170 111. 60. any character where it can legally 'Note. — Lapsed Legacies: The llth. do so. Dorsey v. Dodson, 104 111. section of the statute of descent, App. 589. See also Rood on Wilis, was intended to prevent the laps- sees. 668 to 679, chapter 20, entitled ing of legacies (see statute at "Lapses and Substitutions." CHAPTER XI CONTEST OF WILLS IN CHANCERY Sec. 255. The statute confers chancery jurisdiction. 256. Jurisdiction is very broad in such contest. 257. The issue of fact for jury. 258. When judgment admitting will to probate is not void for want of jurisdiction. 259. Interested persons only can bring suit, 260. Stoors v. St. Luke's Hospital. 261. A jury may be waived. 262. Where evidence is not suflB- cient to support verdict for plaintiff. 263. The court applies and con- strues the law, the jury the facts. 264. The party affirming the va- lidity of the will has the right to open and close the case. 265. Who are and who are not competent witnesses. 266. What constitutes a prima fa- cie case. 267. The contents of a lost or des- troyed will may be proved by a single witness. Sec. 268. Secondary evidence. 269. Expert witnesses. 270. Upon a supposed state of facts only an expert can tes- tify. 271. Statements and declarations before and after making will. 272. Testamentary capacity. 273. Brice v. Hall. 274. Sound mind and memory. 275. What is the effect of old age upon testamentary capacity. 276. Fraud and compulsion or im- proper conduct. 277. Undue influence and improp- er conduct. 278. General influence such as ad- vice, argument or persua- sion. 279. Trial by jury how far conclu- sive. 280. The costs in such cases. 281. Executors generally not lia- ble individually, but may be in certain contingencies. 282. Solicitor's fees allowed in cer- tain contingencies. Sec. 255. The statute of Illinois confers chancery jurisdic- tion. The jurisdictior. of courts of chancery in Illinois, to en- tertain bills to set aside the probate of wills, is derived exclu- sively from the statute ; and the jurisdiction of such court can only be exercised in the mode and under limitation prescribed 184 CONTEST OF WILLS IN CHANCERY. 185 by the statute.^ *^ A bill in chancery to set aside a will or its probate can not be entertained under the general equity powers vesting in courts of chancery independently of the statute which confers the jurisdiction.^^ The jurisdiction is de- termined by the statute law of the State providing for the con- test of wills in chancery in force when such bill is filed ; and this is true, even though the statute law for such purpose may not be the same as when the will was probated. The jurisdiction of chancery can be exercised only in the manner and under the lim- itations prescribed by statute; and the time within which such a bill may be filed by any person interested is fixed by the statute granting the remedy.^ ^ In construing statutes, the courts make a radical distinction between a statute law which gives a remedy and fixes a time within which it may be exercised, and a statute of limitation which fixes a time within which a common law remedy may be resorted to.^^ Before the bar of the statute has fallen, the state may establish, alter, lengthen or shorten the period of limitation.!^ In the case of Ryhiner v. Frank, it is held ^ ^ That where a statute of limitation limiting the time with- in which an act may be done, is modified by changing the time, if such change still gives a reasonable time for the perform- ance of the act, taking away no vested right, it is a valid law. The statute as amended in 1903, and in force July Ij of the same year is as follows: "When any will, testament, or cod- icil shall be exhibited in the County Court for probate thereof as aforesaid, it shall be the duty of the court to receive the 10— Luther v. Luther, 122 111. 338; O'Brien v. Bonfield, 220 111. 565, and cases cited by the court. 219. Jele V. Lemberger, 163 111. 338. 13 — "The Harrisburgh," 119 U. 11— Gaines v. Feunter, 92 U. S. S. 199; Spalding v. White, 173 111. 10; Luther v. Luther, 122 111. 565, 127. and cases cited in the opinion; 14 — Terry v. Anderson, 95 U. S. Jele V, Lemberger, 163 111. 338. 628; Ryhiner v. Frank, 105 IlL 12 — Luther v. Luther, 122 111. 326; Am. & Eng. Ency. of Law, R. 565; Wheeler v. Wheeler, 134 111. ed., 609, under head of "Limita- 522; Spalding v. White, 173 111. tions" and cases cited. 127; Jele v. Lemberger, 163 111. 15—105 111. 326; Spalding v. White, 173 111. 127. 186 THE LAW OF ESTATES. probate of the same without delay and to grant letters testa- mentary thereon to the person or persons entitled, and to do all other needful acts to enable the parties concerned to make settlement of the estate at as early a day as shall be consist- ent with the right of the respective persons interested therein : Provided, however, that if any person interested shall, within one (1) year after the probate of any such will, testament or codicil in the County Court as aforesaid, appear and by his or her bill in chancery contest the validity of the same, an issue at law shall be made up whether the writing produced be the will of the testator or testatrix or not, which shall be tried by a jury in the Circuit Court of the county wherein such will, testament or codicil shall have been proven and recorded as aforesaid, according to the practice of chancery in similar cases ; but if no such person shall appear within the time aforesaid, the probate shall be forever binding and con- clusive on all the parties concerned, saving to infants or non compos mentis the like period after the removal of their re- spective disabilities. And in all such trials by a jury as afore- said the certificate of the oath of the witnesses at the time of the first probate, shall be admitted as evidence and to have such weight as the jury shall think it may deserve. "^^ 256. Jurisdiction is very broad in such contest. The juris- diction in equity of a bill to contest a will, extends to an in- vestigation of any and every ground on which the validity of the will may be attacked ; but the bill must be consistent in its averments, for the complainant cannot state one case in the 16 — Starr & Curtis Annotated cases cited; Vol. 5, pp. 576, 577, Statutes of Illinois, with Jones sets forth statute passed in 1903, and Addington's Supplements and gives cases applicable to text thereto, Vol. 3, pp. 4036 to 4039, on pages noted and on page 57S. "With cases giving history of the Kurd's R. S. of 111. 1905, Sec. 7, common law right to contest will Chapter 148 "Wills," pp. 2051, 2052. as extended in the early statutes See also the following cases, Davis of Virginia, Kentucky, and Illi- v. Upson, 209 111. 206; Sharp v. nois. Vol. 4, pp. 1286 to 1289. and Sharp, 213 111. 332; Davidson v. Redden, 214 111. 61. CONTEST OF WILLS L\ CHANCERY. 187 bill and prove another.-" The contest must be tried upon the issue made in the pleadings.^i 257. The issue of facts for jury. The statute quoted in section 255 of this work is similar to the statute of the state in 1845, the material difference being, that under the statute of 1845, five (5) years was allowed, after probate of will, within which an interested party could file a bill to contest. -- The leading case, Riggs v. Wilto }),-■'• was decided in 1851, Chief Justice Treat delivering' the opinion. The excellent exposition of the law as laid dov,]i in that opinion, often cited in late de- cisions touching the same subject matter, we think warrants a liberal reference thereto. It is said in that case, this is a feigned issue out of chancery to determine the question whether a certain paper was the last will and testament of C R . The plaintiff' alleges that it was not his last will and testament ; the defendant affirms that it was. On the trial, the defendants were allowed to open and conclude the case ; and both of the subscrib- ing witnesses to the will were introduced, and testimony was of- fered tending to show that R was of unsound mind and mem- ory at the time of the execution of his will. The issue was submit- ted to the jury as a new and original question, to be determined exclusively upon the evidence introduced before them. The trial is de novo and without regard to the fact that the instru- ment was admitted to probate. The certificate of the oaths of witnesses at the time of the probate may be offered in evidence by either party; but it is to receive such weight only as the jurj^ may think it deserves in connection with the other proof in the case. We are satisfied that rule of construction is sound and reasonable, and well calculated to carry out the real inten- tion of the legislature. In practice it will best protect the ends 20 — Swearington v. Inman, 198 67; Ingraham v. Ingraham, 169 111. 111. 257; Carmichael v. Reed, 45 461; Smith v. Henline, 174 111. 199. 111. 108; Purdy v. Hall, 134 111. 22— Riggs v. Wilton, 13 111. 17; 298. Yoe v. McCord, 74 111. 33; Ruther- 21— Wallace v. Whitman, 201 111. ford v. Morris, 77 111. 397. 23—13 111. 17. 188 THE LAW OF ESTATES. of justice, and protect the rights of parties. The jury are to hear the proofs submitted by the parties, and decide the issue as they would any other question of fact, according to the weight of the evidence. In such case the parties are brought before the court for the express purpose of having all ques- tions respecting the validity of the will forever put at rest. It was clearly the design of the legislature that an issue under the statute should be determined, like every other issue out of chancery, upon the weight and preponderance of the testi- mony adduced by the parties. This may be gathered from the expression in the statute, "that the issue shall be tried by a jury, according to the practice of courts of chancery in sim- ilar eases." And it is further evidenced by the provisions of an Act of the 25th of Februarj^ 1845.-* This act declares, that when probate of a will shall be refused and an appeal shall be prosecuted, the party seeking probate may support the will by any evidence that would be competent on the trial of an issue out of chancery, for the purpose of contesting the validity there- of. "25 258. When judgment admitting will to probate is not void for want of jurisdiction. Section 14 of the act concerning wills, provides: Appeals may be taken from the order of the county court, allowing or disallowing any will to probate, by any pereon interested in such will, in the same manner as appeals are taken from justices of the peace, except that the appeal bond 24— See Section 13, Chapter 148, 111. 425; Singloff v. Bruner, 174 "Wills"; Kurd's R. S. of 111., 1905; 111. 561; Entwistle v. Merkle, 180 p. 2053; this is the law in that 111. 24; Petefish v. Becker, 176 111. regard passed by the legislature 448; Nieman v. Schnitker, 181 111. in 1845, but now appearing under 400; Shaw v. Camp, 163 111. 148; the act relating to wills. Claussenius v. Claussenius, 179 111. 25 — See the following cases, af- 545; Smith v. Henline, 174 111. firming the principles laid down 184; Stoors v. St. Luke's Hospital, in the case of Riggs v. Walton, 180 111. 368; Swearington v. In- SKpra (23); Johnson v.' Johnson, man, 198 111. 255; Baker v. Baker, 187 111. 93; Bardell v. Brady, 172 202 111. 595; O'Brien v. Bonfield, 220 111. 219. CONTEST OF WILLS IN CHANCERY. 189 and security may be approved by the clerk of the county court ; and the trials of such appeals shall be de novo?^ And it is held that if the party appealing from the court's refusal to admit a will to probate is not named in the will as legatee or devisee, and is not an heir of the testator or testatrix, yet if the appeal bond recites that the appellant is " a legatee named in the will, ' ' the circuit court has jurisdiction to hear the appeal, and its judgment admitting the will to probate is res judicata, upon the question of the appellant's interest, in a collateral proceeding, as collateral attacks cannot prevail unless the judgment is void.-^ But it is held, within the meaning of the statute quoted, the party taking the appeal, must be one having a vested as distin- guished from a contingent interest.^s And the appeal must be taken within the time prescribed by the statute in question.^^ 259. Interested persons only can bring bill. In constru- ing section 7 of the statute of wills, it has been held, the words, "any person interested," as used in the proviso to said section, means those persons who are interested in the settlement of the estate, that is to say, those who will be directly affected by its settlement; that the interest must be a direct pecuniary interest affected by the probate of the will, as the reference to an exist- ing interest, and not to an interest which may be subsequently acquired. A person, not directly and pecuniarily interested in the estate of a deceased person at the time of the probate of the will of such decedent, is not entitled to file a bill in chancery for the purpose of contesting the will.^*^ In McDonald v. White, 26 — See sections 13 and 14, 27 — White Memorial Home v. Chapter 148, "Wills." Starr & Cur- Price, 195 111. 279. tis Annotated Statutes of Illinois, 28 — People v. McCormick, 201 with Jones & Addington's Supple- 111. 313; Same v. Same, 104 111. ments thereto. Vol. 3, pp. 4042, App. 650 4043; Vol. 4, pp. 1289, 1290; Vol. 29— Wright v. Simpson, 200 111. 5, pp. 578, 579, and cases cited in 61, each volume under sections of 30 — McDonald v. White, 130 111. statute noted. Hurd's R. S. of III. 493; Jele v. Lemberger, 163 111. 1905, same sections and chapter, 338; Stoors v. St. Luke's Hospi- p. 2053. tal, 180 111. 373. In the latter case. 190 THE LAW OF ESTATES. it is said:^^ Appellants were not interested in the probate of this will. They were deprived of nothing by it. Their interest was derived by purchase long subsequent to the probate of the will, and is, therefore, not such as is within the contemplation of the statute. ]\Ioreover, James M. McDonald never had posses- sion of this property. He never had any apparent title to it. At most, all that he had Avas the bare right to establish title by suc- cessfully contesting this will. But such a right is not assignable, and cannot therefore, be the subject of a conveyance.'^^ 260. In Stoors v. St. Luke's Hospital, the court said:^^ The right to file the bill, which existed in George M. Stoors, did not descend to the appellant, Emory A. Stoors. George M. Stoors had the bare right to establish title by successfully contesting the will. That right was not assignable, as we held in McDonald v. Wliite?'^ If it was not assignable by a convey- ance or written transfer, it could not pass by inheritance or de- scent. The right to dispose of property by will is always con- sidered purely a creature of statute.^ *^ No statute exists in this it is held, the law in force when Wis. 183; Gardner v. Adams, 12 bill to contest a will is filed con- Wend. 297; Marshall v. Means, 12 trols the jurisdiction, and not the Ga. 61; Daj'ton v. Fargo, 45 Mich, law in force when the will is pro- 153; Brush v. Sweet, 38 Mich. 574. bated. Courts of equity take juris- The cases cited hold, that the as- diction solely from the statute in signment of a bare right to fill a such matter, and independently of bill in equity for a fraud com- the statute which grant such court mitted on the assignor, will be jurisdiction, cannot exercise with- held A'oid as being against public in itself jurisdiction under a policy and savoring of mainte- bill to contest a will; the mode nance, this doctrine being applied and the limitation prescribed by to the facts in the case of Norton the statute solely give such courts v. Tuttle, supra, and later Stoors power to act. v. St. Luke's Hospital, stipra (30), 31—130 111. 493. in a bill to contest will. 32— Norton V. Tuttle, 60 HI. 130; 33— Stoors v. St. Luke's Hospl- Illinois Land and Loan Co. v. tal, 180 111. 373. Speyer, 138 111. 137. See also 2 34— McDonald v. White, 130 111. Story's Eg. Jur., sec. 1040 h; 3 493. Pomeroy's Eq. Jur., sec. 1276; 1 3.5 — United States v. Perkins, Am. & Eng. Ency. of Law, p. 833; 163 U. S. 625; Kochersperger v. M. & M. R. R. V. M. & M. R. R., 20 Drake, 167 111. 122. CONTEST OF WILLS IN CHANCERY. 191 State, so far as we are advised, which authorizes the right to file such a bill to pass by descent, or to go to an heir by inheritance. The right of a widow to dower do€S not survive to the administra- tor.2^ An action to recover a statutory penalty does not sur- vive the death of the defendant.^'* 261. A jury may be waived. In Whipple v. Eddy, it is said:^^ It is next contended that the Circuit Court was without jurisdiction to try the issues formed, without a jury. To the reply that a jury was expressly waived by agreement of the parties, it is said jurisdiction cannot be given by consent. This is a misapplication of the rule invoked. Section 7 of the statute of ''Wills" confers jurisdiction upon courts of chancery to hear bills to contest wills. It was said in Wolf v. Bollinger,^^ that the statute gave a court of chancery authority to adjudge upon the validity of any part of an instrument as well as the whole, and when there was no dispute of fact, and parties proceeded to trial without objection and without asking that an issue at law be made up and tried by a jury, that was a waiver of the making up and trial by the jury of such issue. The provisions as to how the trial shall be had in no way affects the juris- diction of the court. The question raised is more properly whether a jury may be waived by the parties when "an issue of law is made up, as to whether the writing produced be the will of the testator or testatrix." It is true, the language of the statute is, ''which shall be tried by a jury," etc.; but the word "shall," as here used, has no other or greater force than the word "may." If a jury can be waived in such a case, it was clearly done here by stipulation in writ- ing entered of record. Counsel has cited decisions from the Supreme Court of Kentucky, Virginia and other states upon statutes of which ours is a substantial copy, and it is insisted that they decide that the trial must be by jury. These deci- 36— Hitt V. Scammon, 82 III. 519. 38—161 111. 114. 37— Diversey v.' Smith, 103 111. 39—62 111. 368. 378. 192 THE LAW OF ESTATES. sions go no further than our own, so far as we can discover. All agree that the statute contemplates a trial by jury, and that the court could not dispense with the jury without the consent of all parties interested ; but we do not understand any of the cases cited as holding that a jury may not be waived as in any other civil case, and we think the result of our decisions is that it can. The verdict of a jury in the contest of a will has the same effect, and the power of a court to set it aside and grant a new trial is the same, as in actions of law."**^ The court having the ultimate right to determine whether the issue has been decided in accordance with the evidence, no good rea- son can be shown why the parties may not, with the consent of the court, submit such issue to it in the first place, if they see proper to do so. Of course, the verdict of the jury is only to be set aside when it is manifestly against the weight of the evidence, but the court alone has the power to say when it is so. The law will not allow appellant to complain that it was error to permit him to waive his rights.*^ When a party suffers the case to be tried by the court until the issues are found against him, he waives any right he may have had to a jury trial.^^ 262. Where evidence is not suflBcient to support a verdict for plaintiff. In Thompson v. Bennett, the court said:'*^ It is true, that the statute requires the issue as to the validity of a will to be tried by a jury. Hence, if the court takes a case, in- 40— Meeker v. Meeker, 75 111. Hock, 118 111. 587. It is held, that 260; Calvert v. Carpenter, 96 111. where the court had jurisdiction 63; Shevalier v. Seager, 121 111. of the person and of the subject 564. matter, and the judgment was 41 — Heacock v. Hosmer, 109 111. valid, any error or irregularity 245; Burgwin v. Babcock, 11 111. with the trial of the case without 28; Phillips v. Hood, 85 111. 450; a jury and where nothing appears Heinrichsen v. Mudd, 33 111. 476; in the record to show a jury was Proffatt on Jury Trials, sec. 110. waived or not waived, it will be 42 — Ellithorpe v. Buck, 17 Ohio presumed a jury was waived by St. 72; Proffatt on Jury Trials, sec. the parties. 112. In the case of Railway Co. v. 43—194 111, 61. CONTEST OF WILLS IN CHANCERY. 193 volving such an issue, from the jury and directs a verdict against the contestants, the same rule must be applied that obtains in respect to trials in suits at law.'*^ In Purdy v. Hall, where a bill was filed to set aside the probate of a willj it is held : ' ' The rule in actions at law is, that when the evidence given at the trial, with all the inferences that could justly be drawn from it, is so insufficient to support a verdict for the plaintiff, that such a verdict, if returned, must be set aside, the court is not bound to submit the case to the jury, but may direct a verdict for the defendant. ' ' 263. The court applies and construes the law, the jury the facts. The question whether the will has been executed with all the proper formalities, is a question of law, and not a question of fact to be considered by the jury.-*^ It is not in the province of the jury to determine whether the will is a just, wise and proper disposition of the testator's property. ^^ In Freeman v. Easly,'^'^ the evidence established at least a partial unsound condition of the mind, and it was held the jury should not for that reason alone, be told, as a matter of law, that would incapacitate him to make a valid will. That would be to state the rule of law on this subject broader than the authorities in this or other States will warrant. It accords with common ob- servation that in contests concerning wills, where the testator has made, or has seemingly made, an unequal or inequitable disposi- tion of his property among those occupying the same relation to him, by consanguinity or otherwise, there is a disposition in most minds to seek for a cause for holding the will invalid. The incli- nation in this direction that is found to exist in the minds of most, if not all, jurors, cannot always be controlled by instruct- ing them ; there is no law requiring a testator, nor is he bound, to devise his property equitably or in equal portions among his 44—134 III. 298. 46— Carpenter v. Calvert, 83 111. 45— Roe V. Taylor, 45 111. 485; 62; Neiman v. Schmltka, 181 111. Graybeal v. Gardner, 146 111. 343; 407; Freeman v. Easly, 117 111. Harp V. Parr, 168 111. 459; John- 317. son V. Johnson, 187 111. 93. 47—117 111. 314. 13 194 THE LAW OF ESTATES. heirs. Of course, the law is he may make such disposition of his property as he sees fit, and he may bestow his bounty where he wishes, either upon his heirs or others. While this is un- doubtedly the law, the common mind is disinclined to recog- nize itj and jurors will too frequently seize upon any pretext for finding a verdict in accordance with what they regard as natural justice. 264, The party afl&rming validity of the will has the right to open and close the case. The rule in this State is, that the burden of proof is on the party affirming the execu- tion and validity of the will, and consequently such party has the right to open and close the case.^ But where two wills are of- fered and the subject of contention arises, it has been held, each party affirms the execution and validity of the will; and therefore it was in the discretion of the court, to determine which should have the right to open and conclude the case.^ 265. Who are and who are not competent witnesses. Sections 1 and 2 of the act relating to evidence and deposi- tions, Chapter 51, of the Statute of Illinois," provides: "No party to a civil action, or person directly interested in 1— Bevelot v. Lestrade, 153 111. Young v. Bank of Cairo, 51 111. 73 625; Moyer v. Swyggart, 125 111. Stampoliski v. Steefens, 79 111. 303 262; Tate v. Tate, 89 111. 42; Riggs McFarland v. People, 72 111. 368 V. Wilton, 13 111. 15. McCoy v. People, 71 111. Ill; Rob- 2— Bardel v. Bradley, 172 111. erts v. Pierce, 79 111. 381. And 425. the following cases where the stat- 3 — Post 650; Kurd's R. S. of 111. ute, section 2, chapter 51, Evidence 1905, pp. 1034, 1035; and see the and Depositions was applied: following cases, where this statute Straubher v. Mohler, 80 111. 21; was applied (sec. 1, Evidence & Crane v. Crane, 81 111. 166; Lang- Depositions) : Remann v. Buck- ley v. Dodsworth, 81 111. 87; Muel- master, 85 111. 403; Galbraith ler v. Rebhan, 89 111. 342; Bruner V. McLain, 84 111. 379; Muel- v. Battell, 83 111. 317; Galbraith ler V. Rebhan, 89 111. 342; v. McLain, 84 111. 379; Remann v. Penn v. Oglesby, 89 111. 110; Buckmaster, 85 111. 403; Primmer People V. Starr, 50 111. 52; Free- v. Clabaugh, 78 111. 94; Boynton v. man v. People, 54 111. 153; Graub- Phelps, 52 111. 211; Steel v. Clark, ner v. Jacksonville, etc., 50 111. 87; 77 111. 471; Ruggles v. Gatton, 50 I. C. Ry. Co. V. Weldon, 52 111. 290; 111. 412; Kibbe v. Bancroft, 77 111. Leach v. Nichols, 55 111. 273; CONTEST OF WILLS IN CHANCERY. 195 the event thereof, shall be allowed to testify therein when any adverse party sues or defends as executor, admin- istrator, heir, legatee or devisee, unless when called as a wit- ness by such adverse parties so suing as defendants, and ex- cept in certain other cases named in the statute, to wit: A party or interested person may testify "to facts occurring after the death of such deceased person, or after the ward, heir, legatee or devisee, shall have attained his or her ma- jority." And any agent of any deceased person, is competent to testify, "to any conversation or transaction between such agent and the opposite party or party in interest; and such opposite party or party in interest may testify concerning the same conversation or transaction." And, "when any such party suing or defending as aforesaid, or any person having a direct interest in the event of such action, suit or proceeding shall testify in behalf of such party so suing or defending, to any conversation or transaction with the opposite party or party in interest, then such opposite party or party in interest shall be permitted to testify as to the same conversation or transaction." And "in any such action, suit or proceeding, any witness, not a party to the record, or not a party in inter- est, or not an agent of such deceased person shall, in behalf of any party to such action, suit or proceeding, testify to any conversation or admission by any adverse party or party in interest occurring before the death and in the absence of such deceased person, such adverse party in interest may also tes- tify as to the same admission or conversation." And, "in any such action, suit or proceeding, the deposition of such deceased person shall be read in evidence at the trial, any adverse party or party in interest may testify as to all matters and things testified to in such deposition by such deceased person, and not excluded for irrelevancy or incompetency." The general rule as laid down in Bardell v. Brady,'*' is: Courts of equity 18; Wolcott V. Heath, 78 111. 433; byterian Church v. Emerson, C6 Long V. Conklin, 75 111. 32; Pres- 111. 269. 4—172 111. 424. 196 THE LAW OF ESTATES. will disregard mere matters of form and will look to the sub- stance, and see on which side of the controversy the real interest of a party to the suit who is interested therein lies, and deter- mine the competency of the witness from his interest in the case, regardless of the mere question of pleadings, when the question is as to his interest in the case. Were the rule otherwise, the effect and force of the statute could be evaded/'' 266. What constitutes a prima facie case on bill to con- test. In Johnson v. Johnson, it is said:*^ We have held that, if a will has been probated in the County Court, a certificate of the evidence of the subscribing witnesses will be prima facie proof of the validity of the will in a proceeding in chancery which attacks the probate of the will. Where in addition to the certificate, the testimony of one of the sub- scribing witnesses is also introduced, sustaining the validity of the will, a prima facie case in favor of its validity is unques- 5— Pyle V. Pyle, 158 111. 289, and see the following cases, as to ex- ceptions under statute clauses one, two, three, four and five. See cases cited generally (note 3) and the following as to "events after the death of decedent, or majority of minor:' In re Steel, 65 111. 322; Stewart v. Kirk, 69 111. 509 ; Pease V. Hunt, 60 111. App. 586; Black v. Miller, 71 111. App. 345; Carr v. Carr, 177 111. 456; "As to transac- tions proved hy Agent of De- ceased" Marshall v. Karl, 60 111. 208; Jacquin v. Davidson, 49 HI. 82 ; Donlevy v. Montgomery, 66 111. 227; Loeb v. Stern, 99 111. App. 586. As to transactions proved hy parties entitled to benefit of statute. Penn v. Oglesby, 89 111. 110; Plain v. Roth, 107 111. 588; Bruner v. Battell, 83 111. 317; Pease v. Hunt, 60 111. App. 586; Blanchard v. Blanchard, 191 111. 454. As to conversations or ad- missions during life of deceased adduced by adverse witnesses. Stonecipher v. Hall, 64 111. 121; Richerson v. Sternburg, 65 111. 272; Stevens v. Brown, 12 111. App. 619; Buckman v. Alvord, 71 HI. 155; Maher v. Trust Co., 95 111. App. 375. See also Starr & Curtis Annotated Statutes of Illinois, with Jones & Addington's Supple- ments thereto. Vol. 2, pp. 1822 to 1824 inclusive, and cases cited under sections 1 and 2, clauses 1, 2, 3, 4 and 5, of section 2, chapter 51, entitled "Evidence and Depo- sitions," Vol. 4, pp. 605 to 608 in- clusive, and cases cited under sec- tions and clauses above noted: Vol. 5, pp. 254, 255 and cases cited under said sections. Kurd's R. S. of 111., 1905, same sections and chapter, pp. 1034, 1035. 6—187 111. 93. CONTEST OF WILLS IN CHANCERY. 197 tionably made out.'^ It is incumbent on the proponents of the will to make out a prima facie case, in the first instance, by proper proof of the due execution of the will by the testator and of his mental capacity, as required by statute. The burden of proof is then upon the contestants to prove the allegations of their bill, by a preponderance of all the evidence, that the testator was mentally incompetent. The law throws the weight of the legal presumption in favor of sanity into the scale in favor of the proponents, from which it necessarily results that upon the whole case the burden of proof rests upon the contestants to prove the insanity of the testator.^ 267. The contents of a lost or destroyed will may be proved by a single witness. That the contents of a lost or destroyed will may be proved by the testimony of a single wit- ness, is settled, in England, since the decision of Sugden v. Lord St. Leonards.^ And the like ruling has obtained in this coun- try.i^ And in this country the ruling in general is, that a will may be established by one only of the attesting witnesses, if he can testify to a compliance with the statute relating to its execution; and this rule has been adopted in Illinois.^i And the same principle is applied where the will is destroyed or lost, as that makes no difference.12 It has also been held and followed in Illinois, that declarations, written or oral, made by a testator after the execution of his will are, in the event of its loss, ad- 7 — Hollaway v. Galloway, 51 111. Carpenter v. Calvert, 83 111. 62; 159; Buchanan v. Lennan, 105 111. Johnson v. Johnson, 187 111. 86; 56; In re Page Adm'r, 118 111. 576; Huggins v. Drury, 192 111. 528; Slingloff V. Bivuner, 174 111. 561; Thompson v. Bennett, 194 111. 57. Entwistle v. Meikle, 180 111. 9; 9—17 English (Moak's notes). Harp V. Parr, 168 111. 459; Petefish 453. V. Baker, 176 111. 452; Graybeal v. 10— Dickey v. Malechi, 6 Mo. Gardner, 146 111. 343; Baker v. 177. Baker, 202 111. 620; Moore v. 11— Doran v. Mullen, 78 111. 342. Moore, 211 111. 271. 12— Dickey v. Malechi, 6 Mo. 8— Craig v. Southard, 162 111. 177; Dan v. Brown, 4 Cowan, 483; 209; Craig v. Southard, 148 111. 37 Taylor v. Pegram, 151 111. 106 Wilber v. Wilber, 129 111. 392 Sugden v. Lord St. Leonard, 17 English (Moak's notes) 453. 198 THE LAW OF ESTATES. missible, not only to prove that it has not been cancelled, but also as secondary evidence of its contents.^^ 268. Secondary evidence. Sometimes it becomes abso- lutely necessary to resort to secondary evidence, and witnesses must be produced, who can legally qualify in such case; they must have a knowledge of the general character of the hand- writing they identify; either by having seen the party write, or by having seen letters or other documents which the wit- ness has in the course of business recognized, or that the ab- sent party admitted to be his own. The witness then examines the writing in question and must declare his belief founded on his previous knowledge concerning its genuineness. However, the court or jury can compare the writing in question with other writings of the party, pertinent to the issue, put in evi- dence. Section 6, of the Act in relation to wills, provides "that such other secondary evidence as is admissible in courts of justice to establish written contracts generally in similar cases," may be used when necessary .^^ This section of the stat- ute also applies to lost wills, and secondary evidence of the con- tents of such lost instrument is admissible.^ ^ 269. Expert witnesses. In Rutherford v. Morris, ^^ it is said: These doctors were summoned by the contest- ants, as "experts," for the purpose of invalidating a will de- liberately made by a man quite as competent as either of them 13— 7n re Page, 118 111., 578; Cross v. People, 47 111. 152; Fash Slingloff V. Bruner, 174 111. 569. v. Blake, 38 111. 368; Brobston v. 14— Starr & Curtis Annotated Cahill, 64 111. 357; Newton v. Lus- Statutes of Illinois, with Jones & ter, 13 111. 175; In re Bronse, 18 Addington's Supplements thereto. 111. App. 436. Sec. 6, Chapter 148, "Wills." Vol. 15— Jn re Page, 118 111. 576, and 3, p. 4035, and cases cited under cases cited: In the case of Ander- section of statute noted in text, son v. Irwin, 101 111. 413, a lost Vol. 5, p. 1286, and cases cited un- will was established in chancery, der section of statute noted in where the evidence shows a will text. Kurd's R. S. of 111. 1905, deliberately destroyed. And see same section and chapter, p. 2051. rule applied in that case. Putnam v. Wadley, 40 111. 346; 16—77 III. 404. CONTEST OF WILLS IN CHANCERY. 199 to do such an act; they were the contestants' witnesses, and so considered themselves. The testimony of such is worth but little, and should always be received by juries and courts with great caution. It was said by a distinguished judge, in a case before him, if there was any kind of testimony not only of no value, but even worse than that, it was, in his judgment, that of medical experts. They may be able to state the diagnosis of the disease more learnedly, but, upon the question whether it had, at a given time, reached such a stage, that the subject of it was incapable of making a contract, or irresponsible for his acts, the opinion of his neighbors, if men of good, common sense, would be worth more than all the experts in the coun- try. In the case of Carpenter v. Calvert, ^'^ it is said: Physicians may be regarded experts as to the condition of the body, and as to what diseases tend to impair the mind, but it does not follow, from the mere fact that they are physicians, that they are any better judges of the degree of mental capac- ity than other men of good common sense. It has always been held in this state, that the testimony of neighbors of the testa- tor or testatrix, stating in detail what the testator or testatrix, said and done, with their opinion based on such facts, is of more weight upon the question of testamentary capacity than the opinions of experts not based on actual observation.^^ Proof of insanity of collateral blood relations of the testator is per- missible, not further removed than uncles and aunts.^^ 270. Upon a supposed state of facts only an expert can tes- tify. A witness not an expert cannot testify to an opinion upon a supposed state of facts.20 A witness can not give his opinion of the mental capacity of the testator to dispose of his 17—83 111. 71. 127 111. 523; Bevelot v. Lestrade, 18— Reynolds v. Adams, 90 111. 153 111. 625; Amos v. Am. T. & 134; Pittard v. Foster, 12 111. App. Sav. Bank, 221 111. 100. 132; Keithley v. Stafford, 126 111. 19— Dillman v. McDaniel, 222 507. American Bible Society v. 111. 276. Price, 115 111. 623; Beverly v. Mc- 20— Prittard v. Foster, 12 111. Gough, 115 111. 11; Guild v. Hall, App. 132; Am. Bible Society v. Price, 115 111. 623. 200 THE LAW OF ESTATES. property by will ; the quantum of intelligence is for the court. 21 In Craig v. Southard, it is held:22 All persons who have had the means of observation are permitted to testify concerning the existence and measure of capacity of a testator, so far as it may tend to shed light upon the issue, and may give their opinions touching mental capacity, based upon such observation. The weight or effect of such opinions depends upon the means of knowledge of the witness and the facts on which it is based, possible of delinea- tion, and the capacity of the witness to correctly interpret what he has observed. Therefore, the facts upon which the opinion is predicated may be gone into, either to sustain and give force to the opinion, or to discredit it.^^ In the case of Baker V. Baker, ^* the witnesses (none of whom testified as experts) were asked the questions ' ' whether or not the testator, at the time of making the alleged will, had sufficient mind and memory to understand the will in question ? " * ' whether or not he was able to carry in his mind and memory the nature and extent of his prop- erty?" and "whether or not he was able to understandingly execute a will?" which questions were objected to on the trial and the objections sustained. The court passing upon the record, say: These questions simply called for the conclu- sions of the witnesses as to testamentary capacity. In other words, the attempt was to put the witnesses in the place of the jury, and allow them to determine the very issue which it was sworn to try; the evidence was clearly improper.^^ 21 — Keithley v. Stafford, 126 111. the actual interest, and not his 507; Schneider v. Manning, 121 belief, understanding or feeling in 111. 376. regard to such interest. A woman 22 — 148 111. 37. who, as heir, would receive in fee 23 — Baker v. Baker, 202 111. 608; one-third of the property of which Amos V. Am. T. & Sav. Bank, 221 her father died seized, while under 111. 100. his will she would have only a 24—202 111. 608. contingent life estate in ninety- 25 — Schneider v. Manning, 121 nine acres of land, subject to for- 111. 376; Pyle v. Pyle, 158 111. 289. feiture on her attempt to sell or In this case it was held the inter- incumber it, has interests adverse est that disqualifies a witness is to those who claim under the will. CONTEST OF WILLS IN CHANCERY. 201 271. Statements and declarations — before and after making will. In Kaenders v. Mofitague,^^ where a will is charged to have been executed through undue influence, the declara- tions of the testator made before its execution are admissible by way of rebuttal to show his intention as to the disposi- tion of his property, upon the ground that a will made in conformity with such declarations is more likely to have been executed without undue influence than if its terms are contrary to such declarations.^'^ The rule as above stated, in re- gard to prior declarations which are in harmony with the provisions of a contested will, in no way conflicts with the well settled rule, that statements made by the testator, either before or after the execution of a contested will, which are in conflict with the provisions thereof, do not invalidate or modify such will in any manner. Parties making wills cannot invalidate them by their parol declarations made previously or subse- quently.2^ The declarations and statements of a testator, made so as to render her incompetent as a witness against th.em in a suit to set aside the will. So it is held in the same case, the right of a husband to testify in a litigation concerning his wife's separate es- tate, "as other parties may," un- der the provisions of the act on evidence and depositions, does not extend to a suit against executors and devisees to set aside a will in which his wife's interests are adverse to the will. It was also held in the case considered, that it was not error to admit in evi- dence the verdict of the coroner's jury at the inquest held on the body of deceased, for the purpose of showing, prima facie, that he committed suicide. Supported by the case of United States Life Ins. Co. v. Vocke, 129 111. 557. But it was held error in Pyle v. Pyle, supra, where the lower court per- mitted to be answered over objec- tions made, to the evidence of an expert witness, a question not em- bodied in a hypothetical statement of the facts, and calls upon such witness to put himself in the place of the jury, and thereby pass upon the whole issue. This ruling find- ing such error being supported by City of Decatur v. Fisher, 63 111. 241; Chicago & Alton R. R. Co. v- Springfield & Northwestern R. R, Co., 67 111. 142; Chicago, R. I. & P. R. R. Co. V. Moffatt, 75 111. 524 ; Louisville, New Albany and Chi- cago Ry. Co. V, Shires, 108 111. 617; 1 Greenleaf on Evidence, sec. 440. 26—180 111. 307. 27— Harp v. Parr, 168 111. 459; Goodbar v. Lidikey, 136 Ind. 1. 28— Taylor v. Pegram, 151 111. 106; Dickey v. Carter, 42 111. 376. 202 THE LAW OF ESTATES. before or after the execution of his will, may be proved for the purpose of showing his mental condition at the time of the exe- cution of the will.-'* And where the testator has made previous wills, his declarations and statements made about the time of the execution of those former wills, upon the subject of or manner in which he had therein disposed of his property, have been held to be competent evidence.^"^ 272, Testamentary capacity. In the early case of Lilly V. Wagganer,^^ the rule was stated to be that a want of mental power must be such as to render the testator inca- pable of acting rationally in the ordinary affairs of life, or incapable of understanding the effects and consequences of his act; and further, that legal soundness of mind, until inquest had, is a presumption of law, to be overturned by proof only of incompetency at the time of the act in question. In Trish V. Newell, it is said:^^ That prior incompetency or insanity of the testator, arising from accident or temporary dis- ease, does not presume after incompetency to make a will; it is enough if the testator understood the nature of the busi- ness in which he is engaged; has recollection of the property he intends to devise ; of the persons who are the objects of his bounty, and of the manner in which it is to be distributed among them. The best form of expressing the law as to mental capacity is, was the testator's mind and memory sufficiently sound to enable him to know and understand the business in which he was engaged at the time he executed the will.33 The courts generally apply the rule where per- sons have arrived at full age, that presumption must be indulged, where the party has the requisite capacity to enter 29— Nieman v. Schnitka, 181 111. 403; Thompson v. Bennett, 194 403; Craig V. Southard, 148 III. 37; 111, 57; Wombacher v. Barthelme, Petefish V. Becker, 176 111. 448; 194 111. 425. Hill V. Bahrns, 158 111. 314; Taylor 31—27 111. 395. V. Pegram, 151 111. 106. 32—62 111. 196. 30— Taylor v. Pegram, 151 111. 33— Yoe v. McCord, 74 111. 33; 106; Neiman v. Schnitka, 181 111. CONTEST OF WILLS IN CHANCERY. 203 into, and bind himself by all lawful engagements, and, amongst others, may dispose of his property by testament ; and to avoid these acts, the presumption must be rebutted by showing a want of sufficient intellectual capacity to make the agreement or the disposition of his property by will. Like all other mat- ters relating to the human mind, it is difficult to fix any precise, undeviating rule by which it can be determined when a person has mind and memory. And further, it is a rule of law, "that a person who is capable of transacting ordinary business, is also capable of making a valid will. It is not required he shall possess a higher capacity for that, than for the transaction of the ordinary affairs of business." "And the usual test is, that the party be capable of acting rationally in the ordinary affairs of life. " In a recent case where a confidential agent had procured a will to be drawn, it was held : Such act does not show undue influence ; or the fact in that connection, that testatrix is unedu- cated, where it appears she is otherwise a woman of strength of mind and intellect and business capacity, even though she is unable to read, does not justify setting aside her will, where she was able to and did sign her name to the instrument. In such case it will be presumed the testatrix knew the contents of her will.^* In Craig v. Southard,^^ the court admits there is per- haps some confusion in the books and difficulty has always been found, in formulating tests by which to determine testa- mentary capacity. Opportunity for observation of the mental condition of persons occurs, ordinarily, in the common affairs of life, and as it requires no greater mental capacity to dispose of property by will than to transact ordinary business, such as buying and selling, collecting, loaning, leasing, and the like transactions, it has been generally held that capacity to trans- act such ordinary business would show testamentary capacity .3« Meeker v. Meeker, 75 111. 260. 36 — Brown v. Riggin, 94 111. 560; 34 — Compiler v. Browning, 219 Rutherford v. Morris, 77 111. 397; III. 429. Freeman v. Easley, 117 111. 317; 35 — Craig v. Southard, 148 111. Campbell v. Campbell, 130 111. 481 ; 45. Myatt v. Walker, 44 111. 485; Trislj 204 THE LAW OF ESTATES. Another rule laid down and cited in Craig v. Southard^ was, "The real question submitted to the jury is not whether the party had sufficient mental capacity to comprehend and transact ordinary business, but did he, at the time of making the instrument purporting to be his will, have such mind and memory as enabled him to understand the particular business in which he was then engaged.^^ If he did, if he was able to remem- ber who were the natural objects of his bounty, recall to mind the property, and make disposition of it understandingly, according to some purpose or plan formed in his mind, he was possessed of testamentary capacity and with such capacity, uninfluenced improperly by others, he may make valid testamentary disposi- tion of his estate. 273. In Brice v. Hall,^^ the facts in the case nicely illustrate the application of the rules : In that case the wit- ness was unwilling to declare on oath he believed the testator was of ''sound mind." The testator had been afflicted with what the witness called "spells," and had so many of them his mind was injured. When asked whether the testator under- stood what he was doing, the witness replied: "I suppose he understood it — that was my supposition. ' ' When under the in- fluence of "spells," the witness says he was not fit for business, but at other times, he says he "couldn't do a great deal of business — of course he done some little. ' ' The witness says the testator was not under a "spell" on the day he signed his will. On being inquired of, if he saw anything on that day that led him to doubt the soundness of the testator's mind, the witness answered: "I didn't see anything, at that time, that was any- V. Newell, 62 111. 196; Schneider 38— 1 Redfield on Wills, 123, 124; V. Manning, 121 111. 376; Greene v. Campbell v. Campbell, 130 111. 481; Greene, 145 111. 264; Compher v. Greene v. Greene, 145 111. 264; Browning, 219 111. 429. These Stevens v. Van Cleave, 4 Wash. C. authorities follow the general doc- C. 262; Harrison v. Rowan, 3 id. trine laid down in Craig v. South- 580. ard, supra (35). 39—120 111. 601. 37— Craig v. Southard, 148 111. 45. CONTEST OF WILLS IN CHANCERY. 205 thing more than just his ordinary way of living." The testa- tor came out of his house and called the witness, as he was passing on the street, to come in to witness his will. On coming into the house, the testator introduced him to the other sub- scribing witness, and both witnesses then attested the will in the presence of the testator, and at his request, and in the presence of each other. Question by the court: "Is it your belief, that at the time he signed this will he was of sound mind and memory?" A. "To give my honest belief about it, it is just this way — I want the court to understand what I say — I don 't think Uncle Logan, in his last years, had been perfectly sound. That's what I believe, if you want my belief about it. But that day he was as natural and rational as common to see him. Anybody not knowing anything about him at all, would suppose he was all right. That's my honest belief about it. That's just what I want the court to understand — not that I know anything that day more than that." The court held the condition of the testator's mind shows testamentary capacity. In Campbell v. Campbell, in applying the rule it was said:'**' One may have the capacity to comprehend a few simple details, and in consequence have testamentary capacity to make valid disposition of his property, while if he had to re- member many facts, and comprehend many details, the same degree of mental capacity would be wholly insufficient to an intelligent understanding of the business in which he was engaged. The difficulty of stating standards or tests by which to determine the degree of mental capacity of a particular per- son, has been everywhere recognized, and grows out of the inherent impossibility of measuring mental capacity, or its impairment by disease or other causes.^^ 40 — 130 111. 481. These authorities indicate there is 41 — Herman v. Vogt, 181 111. no proper rule for the measure- 400; Ring v. Lawless, 190 111. 520; ment of mental capacity, or its Swearingen v. Inman, 198 111. impairment by disease or other 256; Waters' v. Waters, 222 111. 26. causes. It will be found that each 2U6 THE LAW OP ESTATES. 274. Sound mind and memory. The Illinois courts, and most of the courts are iu complete harmony to the effect "that the law presumes every man to be sane until the contrary is proven, and the burden of proof rest upon the party contesting a will where unsound mind or insanity is made the issue.^^ In Whipple v. Eddy, the court passing upon the question says:'*2 "We have often held that a person who is capable of transacting the ordinary business affairs of life is capable of making a will. "^"^ The fact that a person is affected with insanity, or labors under some delusion, believes in witchcraft, clairvoyance, spiritual influences, presentments of the occurrence of future events, dreams, mind reading, etc., will not affect the validity of his will on the ground of in- sanity,'*^ Manifestly, a man's belief can never be made a test of sanity. When we leave the domain of knowledge and enter upon the field of belief, the range is limitless, extending from the highest degree of rationality to the wildest dream of super- stition, and no standard of mental soundness can be based on one belief rather than another. What to one man is a reason- able belief is to another wholly unreasonable, and while it is true, that belief in what we generally understand to be super- natural things may tend to prove insanity under certain cir- case presents its peculiar facts, 42 — Argo v. CoflBn, 142 111." 368; upon which the question of mental Guild v. Hull, 127 HI. 523; Men- capacity may be determined by the kins v. Lightner, 18 111. 282; Craig court or jury. And it is a fact v. Southard, 162 111. 209; Wilber also, that what establishes mental v. Wilber, 129 111. 392; Waters v. capacity in one case may not da Waters, 222 111. 26. so in another, owing to circum- ., ..„^ ,.. ^^o stances or conditions, in one case, that may not be considered in an- 44— Campbell v. Campbell, 130 other. The law always presumes ^l- 466, and cases cited therein by party making a will or deed as ^^^ court. sound and sane; the burden of 45 — I Redfield on Wills, 79 note proving an unsound condition of 9; Chafee's Will, 32 Wis. 557; In mind is always upon the party re Smith, 52 Wis. 543; Brown v. contesting the will or deed. See Ward, 53 Md. 423; Campbell v. the following authorities sustain- Campbell, 130 111. 466. ing the text. CONTEST OF WILLS IN CHANCERY. 207 cuinstances, it is a well known fact that many of the clearest and brightest intellects have sincerely and honestly believed in spiritualism, mind reading, etc.^^' In Baker v. Baker, it is held:"*^ "The burden of proof (after establishing a prima facie case) is upon the con- testants to prove the allegations of their bill, by a preponder- ance of all the evidence, that the testator was mentally incom- petent. The law throws the weight of the legal presumption in favor of sanity into the scale in favor of the proponents, from which it necessarily results that upon the whole case the burden of proof rests upon the contestants to prove the insanity of the testator. In Bing v. Lawless, the court quoting from its opin- ion in Daily v. Daily, say:*^ "Section 1 of chapter 148, of the Revised Statutes, entitled 'Wills,' relates to the competency of the testator; and as to his requisite mental ca- pacity the expression of the statute is, such testator shall be 'of sound mind and memory.' Long prior to the enactment of the statute the legal meaning of the phrases 'sound mind and memory' and 'sound and disposing mind and memory' and 'sound and disposing mind' had become well established. They were convertible terms, and were used interchangeably, to de- note that degree of mental strength and power deemed requisite to testamentary capacity. Absolutely sound and perfect mental faculties were not requisite to such capacity, nor was such the interpretation of the word 'sound' as employed in any such phrases but the phrases were employed as expressive, in their entirety, of the degree of mental power and vigor which a 46— Campbell v. Campbell, 130 47—202 111. 620. The following 111. 466. In this case, the court cases support the doctrine of that in passing upon the question of case. Craig v. Southard, 162 111. the insanity of the testator raised 209; Same v. Same, 148 111. 37 in that case upon the theory of Carpenter v. Calvert, 83 111. 62 his peculiar belief, say: What to Huggins v. Drury, 192 111. 528 one man is a reasonable belief is Thompson v. Bennett, 194 111. 57. to another wholly unreasonable. 48—190 111. 530; 183 111. 269. 208 THE LAW OF ESTATES. testator should possess in order to be competent to dispose of his estate by will."^^ 275. What is the effect of old age upon testamentary capac- ity. The case of Rutherford v. Morris,^^ raised the issue, that the testator was old and infirm and suffered chiefly from senile dementia, which incapacitated him from making a valid will. The case was tried by a jury, who found the issue for the contestants. On appeal to the supreme court, the case was reversed. On page 408, the court says: **It is upon the ground of senile dementia, chiefly, this ease rests. As this is wholly disproved as existing at the time of the execution of this will, or at any time previous, the verdict should have been for the proponents of the will. What is the effect of old age upon testamentary capacity, is a subject which has received the attention of all courts, this among them ; and it has never been held, anywhere, that old age alone denotes incompetency. In Watson v. Watson,^^ one eighty-six years old, and af- flicted with disease, was held competent to execute a will. So, also, one of eighty years of age, with energies greatly impaired.^^ In Van Arst v. Hunter, Chancellor Kent said, in regard to the will of a person between ninety and one hundred years of age: "A man may freely make his testament, how old soever he may be. It is one of the painful consequences of extreme old age, that it ceases to excite interest, and is apt to be left solitary and neg- lected. The control which the law still gives to a man over the disposal of his property, is one of the most efficient means he has, in protracted life, to command the attention due to his infirmities. The will of such an aged man ought to be regarded 49 — Sec. 1, Chapt. 148, Wills, in question; Vol. 5, p. 573, et seq.. Starr & Curtis Annotated Statutes under head of "General Notes." of Illinois, with Jones & Adding- Hurd's R. S. of 111. 1905, same sec- ton's Supplements thereto. Vol. 3, tion and chapter, p. 2050. p. 4022, et seq., and cases cited 50—77 111. 397. under section of statute in ques- 51 — 2 B. Monroe 74; 2 B. Monroe tion; Vol. 4, pp. 1283, 1284, and 79. cases cited under section of statute 52 — 5 Johns, Ch. 148. CONTEST OF WILLS IN CHANCERY. 209 with great tenderness, when it appears not to have been pro- duced by fraudulent acts, but contains those very dispositions which tiie circumstances of his situation and the course of the natural affections dictated." In Entwistle v. Meikle,^^ the record shows the tes- tator was a man of 91 years of age at the time of executing his will, was of robust constitution, with a strong and vigorous mind ; that he transacted his ordinary business both before and for more than a year after the execution of his will, making leases of his farms, buying village lots and in one instance pur- chasing 335 acres of land. The will was contested on the ground of mental incapacity and unsound memory, but the court held the will good. 276. Fraud ajid compulsion, or improper conduct, are al- ways questions of fact arising and connected with the making and executing of wills. The testator or testatrix under the well settled rules of law, relating to valid willSj must not be imposed upon, unduly influenced, or be compelled to submit to improper conduct, by any person that would tend to impair or affect the free agency of the maker of such an instrument. The law assumes the maker of a will has the utmost confidence in the party putting the will in form; and, the law demands he should be extremely careful, not to misstate its contents to the testator, when such are ill, infirm, old or otherwise lacking in mental force and vigor at the time the will is made. And this is especially so, if the testator or testatrix could not or did not read the will before signing the same. Fraud in respect to the execution of wills, like fraud in other transactions, cannot 53 — 180 111. 9; In Entwistle v. inquiry to cover the full period up Meikle, it was held, where the pro- to the testator's death. The rec- ponents' witnesses having testified ords of the county court showing as to the testator's mental capacity the appointment of a conservator in business transactions during a for the testator some years after period of several years before and the execution of the will in con- after the execution of the will in test excluded by the lower court question, the contestants can not v.-ere held properly excluded in on cross-examination, extend their this case. 14 210 THE LAW OF ESTATES. be exactly defined, it is never a presumption of law, and the circumstances in one case is rarely a precedent for another. iWhere it appears from competent evidence, the will procured, is not the will of the testator or testatrix, but that of another substituted, it is simple fraud, and courts will unhesitatingly set aside every such instrument thus procured. And should it appear from competent evidence, that the will in question was procured, by misstating its contents to a testator, who could not or did not read it; or by omitting to read some im- portant provision; or pretending to read provisions into the will, which in fact were not there, leaving the maker of the will to believe, when it was signed and witnessed, that his or her will was written as it was read, or as its contents were stated to him or her; or by wrongly substituting one paper for an- other, and having him or her sign the substituted paper for his or her will, under the belief it was the one he or she intended to sign, is common fraud and will not be tolerated by the courts when called upon to act. What circumstances amount to proof of fraud is not matter of legal definition; the legal test is, the sufficiency of the evidence to satisfy the understanding and the conscience."* Where property is conveyed for the fraud- ulent purpose of defeating the rights of the wife of the grantor, equity in applying the law will leave the parties where they placed themselves.^^ 277. Undue influence and improper conduct, is often inter- mingled with fraud ; the greatest per cent of contested wills are always based upon fine legal distinctions, whereby the courts, define or attempt to define, undue influence, improper con- duct, or simple fraud. It will be observed, however, that in each case, some line of circumstances, supported by direct or indirect evidence, usually force the term applied to the case in hand. Thus, in the case of Smith v. Hamline,^^ un- 54— Carter v. Gunnels, 67 111. Jones v. Jones, 213 III. 228; Jolly 270. V. Graham, 222 111. 550. 55— Miller v. Markle, 21 111. 152; 56—174 111. 184. Kirkpatrick v. Clark, 132 111. 342; CONTEST OF WILLS IN CHANCERY. 211 due influence is defined as "any improper conduct, machina- tion, or urgency of persuasion, whereby the will of a person is overpowered, and he is inclined to do, or forbears, an act which he would not do, or would do, if left to act freely. And such may be inferred from union of circumstances, as, de- parture from terms of previous will, false impressions under which the instrument is made, active agency of beneficiary in procuring it; absence of those who had equal claims upon tes- tator, old age accompanied by feebleness and disease." It was also held in that case, ''While the existence of an illicit relation between the testator and the beneficiary, does not raise a legal presumption of undue influence, it is a circumstance from which such influence may be more fully inferred. And such fact may be shown and considered with proof tending to show constraint and interference by the beneficiary ; with impaired mental capacity, loss of will power, disease and other impair- ments of the testator when the will was made. ' ' But the rule is: Undue influence to invalidate a will, must be connected with the execution of the will, and must be such as to deprive the testator or testatrix of free agency.^""^ Upon a charge of want of testamentary capacity, and fraud and undue influence in procuring the execution of a will, evi- dence is admissible of matters occurring in the testator's fam- ily and his relations with the beneficiaries, and his declarations showing his feelings toward them.-^^ 278. General influence, such as advice, argument or per- suasion, made freely, will not be sufficient to set aside a will; thus, if a wife by her virtues, has gained such an ascendency over her husband, so riveted his affections, that her good 57— Wilber v. Wilber, 138 111. 134; Cockerman v. Cockerman, 17 446; Purdy v. Hali, 134 111. 298; III. App. 605; Beaubien v. Cicotte, Pooler V. Christman, 145 III. 405; 12 Mich. 486; Dennison's Appeal, Taylor v. Pegram, 151 111. 106; 29 Conn. 402; Mooney v. Oleson, 22 Nicewander v. Nicewander, 151 111. Kan. 69 ; 27 Am. & Eng. Ency. of 156; Kaenders v. Montague, 180 Law, 505, 506, and cases cited: 111. 300; Thompson v. Bennett, 194 Schouler on Wills, section 243; 111- 57. Smith v. Henline, 174 111. 184; In 58 — Reynolds v. Adams, 90 111. re Shelly's Estate, 28 Colo. 157. 212 THE LAW OF ESTATES. pleasure is a law to him, such an influence can never be a reason for impeaching a will made in her favor, even to the exclusion of the residue of the family. ^9 Influence the result of affection merely is not undue influence, within the meaning of the law; inequality or unreasonableness in the distribution of property, is not conclusive of undue influeuce.*^*^ It will be noted, from all the cases, where undue influence, without fraud, has the effect to avoid the will, the evidence and circumstances passed upon by the court, deprived the testator or testatrix of his or her free agency; thus, immoderate per- severing, begging importunities and flattery of a wife, who will take no denial, pressed upon an old and feeble man, which may be better imagined than described ; or any vicious control or dominion from whatever source, resulting in violence, ill- treatment, threats or fear of displeasure, or any misconduct on the part of those who receive the bounty or share the estate of any testator or testatrix, will not be sanctioned or tolerated by the courts.^^ 279. Trial by jury haw far conclusive. The verdict of a jury in a contested will case in chancery, has the same force and effect, as a verdict at law.^^ And when the verdict is sanc- tioned by the court, where witnesses testify from the stand, it is entitled to great weight.'^^ In Egbers v. Eghers,^'^ two trials were had, and the verdicts of both juries were the same. The court in its final opinion says : While it may appear from the record before us that the proponents made out the stronger case upon the facts, 59— Small v. Small, 4 Greenl. 61—1 Redfield on Wills, 196, 197 220; Bawnfield v. Bawnfield, 43 111. and case cited in notes. Thomp- 148; Rutherford v. Morris, 77 111. son v. Bennett, 194 111. 57. 397; Burt v. Quisenberry, 132 111. 62 — Long v. Long, 107 111. 210; 399. Am. Bible Society v. Price, 115 111. 60 — Nicewander v. Nicewander, 623; Ring v. Lawless, 190 III. 531; 151 111, 156; Claussenius v. Clans- Whipple v. Eddy, 161 111. 119; senius, 179 111. 545; Webster v. Johnson v. Johnson, 187 111. 92. Yorty, 194 111. 408; Francis v. 63— Petefish v. Becker, 176 111. Wilkerson, 147 111. 370; Compher 451. V. Browning, 219 111. 429. 64—177 111. 86. CONTEST OF WILLS IN CHANCERY. 213 it must be considered, that the jury and court below saw and heard the witnesses and had better means of weighing the testimony than we have. We cannot, upon the record, say the verdict was manifestly wrong or against the evidence, and while we might have been better satisfied, from the evidence in the record, with a different verdict, the rule of this court has long been, not to interfere with the verdict in such cases. And especially should this rule be adhered to where a second trial has produced the same result.^^ In Schmidt v. Schmidt,^^ where the evidence reviewed by the court was against the clear preponderance the verdict of the jury was set aside, the court tak- ing the opportunity to say: ''Jurors are often inclined to disre- gard the evidence and hunt for some excuse outside of the evi- dence upon which to set aside a will if it does not comport with their ideas of right and justice, and it often becomes the duty of the courts, in this class of cases, to interfere and set aside their verdicts for that reason. "^''^ 280. The costs in such cases. In a contested will ease, the court may, in the exercise of a sound discretion, distribute the costs of the defeated party among them pro rata, according to their interest in the matter in controversy, or as to the court seems just and equitable.®^ 281. An executor cannot in general be held individually. An executor, as a general rule, cannot be held individually liable for costs made in defense to a proceeding to contest the validity of the will, it being his duty to defend.^^ But the rule is not inflexible, the proceeding being in equity, the executor 65— Hill V. Bahrns, 158 111. 314; 400; Bradley v. Palmer, 193 111. 15, Howitt V. Estelle, 92 111. 218; and cases cited in opinion of court. Green v. Green, 145 111. 264; Mc- 68 — Otis v. Gardner, 105 111. 436; Common v. McCommon, 151 111. Howe v. Hutchinson, 105 111. 501; 428, and cases cited in opinion. Scliultze v. Houfes, 96 111. 335; 66—201 111. 201. Field v. Oppenstein, 98 111. 68. 67 — Rutherford v. Morris, 77 111. 69 — Pingree v. Jones, 80 111. 177; 397; Freeman v. Easly, 117 111. Shaw v. Camp, 56 HI. App. 23. 317; Nieman v. Schnitka, 181 111. 214 THE LAW OF ESTATES. luay be charged if he acts in bad faith, or if he is personally interested, and defends for his own protection, upon principles applicable in other proceedings in equity J" On bill to contest the validity and probate of a will the executor is a proper party, and may be liable for costs which may be adjudged against him in certain contingencies, in the event the probate is set aside and the will declared null and void."^ 282. Solicitor's fees allowed executor. Where the executor upon contest defends the will in good faith, and out of proper motives, for the purpose of carrying out the wishes of the tes- tator, he is entitled to an allowance for reasonable counsel fees paid therein J 2 70— Campbell v. Campbell, 130 111. 466; Bardell v. Brady, 172 111. 423; Shaw v. Camp, 56 111. App. 23. 71— Shaw V. Moderwell, 104 IlL 64; Moj^er v. Swyggart, 125 111. 262; Church v. Eggleston, 3 Colo. Ct. of App. 239. 72— Shaw V. Camp, 163 111. 148, and cases cited touching the point in the opinion. CHAPTER XII TRUSTS AND TRUSTEES Sec. 283. Testamentary trusts general- ly. 284. Who may be trustees. 285. Married women may be trus- tees. 286. Married woman's liability. 287. Who are trustees under the law. 288. Trustees defined. 289. Trustees de son tort. 290. Executors, administrat o r s , guardians and conservators to whom amenable. 291. Testamentary trustees are not under control of probate or county courts. 292. Equity never wants for a trustee. 293. The rule in appointing trus- tees. 294. What property may be the subject of the trust. 295. The same person appointed executor and trustee under will. 296. Voluntary or express trusts must be accepted. Sec. 297. Certain trusts must be in writing, others created by construction, implication or operation of law may be proved by parol. 298. Resulting trust. 299. Constructive trust. 300. Trusts by implication or op- eration of law. 301. Trusts ex vialeficio. 302. Spendthrift trust. 303. Conveyance to uses. Statute of Uses. 304. When the statute takes effect and executes the trust. 305. When the Statute of Uses does not execute the trust. 306. Title of personal property not affected by Statute of Uses. 307. Following trust fund. 308. Statute of Limitations. 309. Perpetuity. 310. Equitable conversion. 311. Relation of creditors and re- mainder-men to trusts. 312. Trust will not be defeated if beneficiary is trustee for himself and others. Sec. 283. Testamentary trusts generally. In all cases where trusts are created or originate by will, the same must be in writing, signed and attested according to the statutory require- ments in force where the will is made, or the domicile of the testator or testatrix is claimed or fixed by operation of law. The testator or testatrix having power and capacity to create 215 21G THE LAV/ OF ESTATES. the trust, should always define clearly in the instrument the object and subject of the trust, and keep within the bounds of statutory enactments and the decisions of the courts relating- to devises and bequests. And such will, to be effective upon the death of the testator or testatrix, must be proved and admitted to probate in the proper court of probate or it cannot be used as a declaration and proof of the trusts created thereby. While the rule, generally speaking, is that a will shall be pro- bated in the first instance at the testator's domicile, as re- quired by the statute, such rule is subject to the exception, which is almost as broad as the rule itself, that it may be pro- bated in any county in any state where the testator had and left assets, particularly real estate.^ 284. Who may be trustees. It may be stated in general terms, that whoever is capable of taking the title or beneficial interest in property may take the same in trust for others.^ Whatever person or persons, association or corporations are capable of having the legal title or beneficial interest cast upon them by gift, grant, bequest, descent, or operation of law, may take the same subject to a trust, and they will become trustees. But it does not follow that whoever is capable of tak- ing in trust, is capable of performing or executing it. The in- quiry, then, is not so much who may take the trust, as it is who may execute and perform a trust. If a trust is cast upon a person incapable of taking or executing it, courts of equity will execute the trust by decree, or they will appoint some person capable of performing the requirements of the trust.^ Thus it is said by Perry (40) the Sovereign may sustain the char- 1— Sec. 11, Chapt. 148 "Wills." minal Transfer Co. v. Winslow, Starr & Curtis Annotated Statutes 216 111. 166. of Illinois, Vol. 3, p. 4040, and 2— Hill on Trustees, section 48; cases cited: Hurd's R. S. of 111. Perry on Trusts, Vol. 1 (1889), 1905, same section and chapter, sec. 39. p. 2052; 23 Am. & Eng. Ency. of 3 — Lewin on Trusts, 27; 1 Perry Law (2nd ed.), 116; In re Story's on Trusts (1889), sees. 39, 40, 41, Estate, 120 111. 244; Chicago Ter- 42. TRUSTS AND TRUSTEES. 217 acter of trustee. (41) The United States, and each of the separate states, may sustain the character of trustee. (42) Corporations of every description may take and hold estates, as trustees, for purposes not foreign to the purpose of their own existence ; and they may be compelled by courts of equity to carry the trusts into execution. If they misapply the trust funds, or refuse to obey the decrees of the court, they may be enjoined, or removed and new trustees appointed. (43) Corporations are the creatures of the law, and as a general rule they cannot exercise powers not given to them by their char- ters or acts of incorporation. For this reason they cannot act as trustees in a matter in which they have no interest, or in a matter that is inconsistent with, or repugnant to, the purposes for which they were created. The legislature of Illinois, in 1887, passed an act entitled, "Administration of trusts by trust com- panies," which went into effect July 1, 1887. Chapter 32, sec- tions 1-19. Under an amendment of that act in force July 1, 1889, it is provided by section 2 (a) : "Whenever application shall be made to any court in this state, for the appointment of any receiver, assignee, guardian, conservator, executor, ad- ministrator or otherwise it shall be lawful for such court to appoint any such corporation as such trustee, receiver, assignee, guardian, conservator, executor or administrator: Provided, any such appointment as guardian or conservator shall apply to the estate only, and not to the person."^ 285. Married women may be trustees. Under the Roman or civil law, married women could alienate their property and dis- pose of it by will. By the common law of England they were almost entirely incapacitated, and up to 1872 in the state of Illinois, a married woman executed and acknowledged deeds, according to prescribed formalities; and they could in general convey their property to trustees, by deed or will, and 4— Starr & Curtis Annotated Vol. 1, p. 1040; Vol. 4, p. 318, and Statutes of Illinois, with Jones & cases cited under section of stat- Addington's Supplements thereto, utes in question. Kurd's R. S. of 111. 1905, p. 538, et seq. 218 THE LAW OF ESTATES. make mortgages of their property with power of sale.^ It has been since the enactments of 1872, in this state, that a married woman has been considered in all re- spects as feme sole in regard to her ownership of real and personal property, obtained by descent, gift or purchase; and the issues, income, profits and proceeds of such property ; she also holds as her own, that which she acquires by her trade, business, labor or service carried on or performed on her sep- arate account. She manages, sells and conveys her property to the same extent and in the same manner, that the husband can property belonging to him; either husband or wife may con- stitute each other their agents to transact his or her business and to deal with his or her property by power of attorney or otherwise ; the restriction being placed upon each, that they or either of them, shall not convey or mortgage their respective real estate, except each join in the deed of the other." Direct deed hy wife to husband or vice versa is valid.'^ Married women may become trustees by deed, gift, bequest, appointment or by operation of law.* 5— Young V. Gra£E, 28 111. 20. In Geison v. Heiderich, 104 111. 537 that case the rule stated in 2 Maxwell v. Maxwell, 109 111. 588 Story's Eq. Jur., 1399. "The sepa- Kirkpatrick v. Clark, 132 111. 342 rate estate of the wife will, in Larson v. Ditto, 90 111. App. 391 equity, be held liable for all the Smith v. Summers Mfg. Co., 69 debts, charges, incumbrances, and 111. App. 232; Despain v. Wagner, other engagements which she does 163 111. 601. expressly or by implication charge 7 — Perry on Trusts, section 48. thereon." And so it was held, 8 — See Section 1, Chapter 148, where the wife voluntarily con- "Wills." Starr & Curtis Annotated veys real estate, which she holds Statutes of Illinois, with Jones & in her own right, by a deed of Addington's Supplements thereto, trust, to secure a debt due by her Vol. 3, p. 4022; "Vol. 4, pp. 1283, husband, equity will hold it liable, 1284, and cases cited under section and when necessary decree a sale, of statute noted. See also Walton This was the law before the stat- v. Follansbee, 165 111. 486; God- ute of 1872, and is the law today schalk v. Fullmer, 176 111. 66; in a similar case. Benson v. Dempster, 183 111. 304. Kurd's R. S. of 111., 1905, same See Section 9, Chapter 59, "Frauds section and chapter, p. 104. and Perjuries," Starr & Curtis An- 6— McClay v. Smith, 87 111. Ill; notated Statutes of Illinois, with TRUSTS AND TRUSTEES. 219 286. Married woman's liability. Under the statutes of Illi- nois if an estate comes to a married woman in any way charged with a trust, her coverture cannot be successfully pleaded. But as the law of this state enables a married woman to enter into contract relating to her sole and separate estate only, the per- plexing question may arise, as to how far she can bind her- self, or her estate, by a bond to execute a trust in property, the beneficial interest in which belongs to another, though her sureties in such case, on her bond, might be liable. By granting these statutory rights to married women they become liable, and their estates as well, where she executes a bond for her husband, or joins her husband or others in executing a bond, promissory note, bill of exchange, lease or other instrument creating a liability ; and though she is not liable under the stat- utes for her husband's debts, may become liable in many ways, particularly for necessary expenses of her family and for the care and education of her children.^ 287. Who are trustees under the law. A testamentary execu- tor or guardian nominated by will, or appointed by the courts Jones & Addington's Supplements See also sections 3, 18, 19, chap- thereto. Vol. 2, p. 2021; Vol. 4, ter 30, "Conveyances," Starr & p. 647; Vol. 5, p. 270, and cases Curtis Statutes of Illinois, with cited under section of statute Jones & Addington's Supplements noted. Kurd's R. S. of 111. 1905, thereto. Vol. 1, pp. 916-926; Vol. 4, same section and chapter, p. 1130. p. 254, and cases cited under sec- See Section 3, Chapter 3, "Admin- tions of statute noted, istration of Estates," Starr & Cur- Kurd's R. S. of 111. 1905, same tis Annotated Statutes of Illinois, section and chapter, pp. 464, 466. with Jones & Addington's Supple- 9 — Section 15, chapter 68, "Kus- ments thereto, Vol. 1, p. 270; band and Wife." Starr & Curtis Section 9. Chapter 68, "Husband Annotated Statutes of Illinois, and Wife," Starr and Curtis Anno- with Jones & Addington's Supple- tated Statutes of Illinois, with ments thereto. Vol. 2, pp. 2133. Jones & Addington's Supplements 2134; Vol. 4, pp. 674, 675, and cases thereto, Vol. 2, pp. 2126 to 2132; cited under section of statute Vol. 4, p. 674; Vol. 5, p. 286, and noted. Kurd's R. S. of 111., 1905, cases cited under section of stat- same section and chapter, p. 1148. ute noted. Kyman v. Karding, 162 III. 360; Kurd's R. S. of 111. 1905, same Arnold v. Keil, 81 111. App. 242. section and chapter, p. 1147. 220 THE LAW OF ESTATES. as such, after accepting the office, and qualifying under the will and the provisions of the statutes, is to a certain extent a trus- tee; and, will be treated as such during the administration of the estate in which he or she is appointed by all courts in which they may appear until finally discharged from such duties as the office imposes by a proper order of the court that appoints them and directs the distribution of the estate in their hands. An administrator with the will annexed, will also be treated as a trustee, and held to account during the administration of an estate in his hands; and generally in the same manner and to the same extent as an executor appointed and accepting under a will. 288. Trustees defined. Such are said to be ''persons, asso- ciations or corporations to whom property is legally committed in trust to be applied either for the benefit of specified individ- uals, or public uses. " Another definition being : "A person in whom some estate, interest, or power in or affecting property of any description is vested for the benefit of another. ' ' Again such is defined as: "An obligation upon a person arising out of a confidence reposed in him to apply property faithfully and according to such confidence. " Again: '' A trust is in the nature of a disposition by which a proprietor transfers to another the property of the subject intrusted, not that it should remain with him, but that it should be applied to certain uses for the benefit of a third party, "i*^ 289. Trustees de son tort. If a person wrongfully interferes with the assets of a deceased person, he may become an admin- istrator or executor de son tort. So, if a person by mistake or otherwise assumes the character of trustee, and acts as such, when the office does not belong to him, he thereby becomes a trustee de son tort, and he may be called to account by the cestui que trust for the assets received under the color of the trust." 10—1 Perry on Trusts (1889), 11—1 Perry on Trusts (1889) section 2. 265; Penn v. Folger, 182 111. 76; TRUSTS AND TRUSTEES. 221 290. Executors, administrators, guardians and conservators to whom amenable. Under the statutes of Illinois, the execu- tor, administrator, guardian and conservator, are, in the first instance, creatures of the probate courts and to those courts are accountable, until duly discharged.^^ 291. Testamentary trustees are not under control of county or probate courts. A court of general chancery jurisdiction lias full control of testamentary trusts and trustees. A testamen- tary trustee is not amenable to probate and county courts ; such come under the jurisdiction of a general court of chancery.^ ^ Larrnan v. Knight, 140 111. 232; Gurn V. Richardson, 128 111. 178. In Larman v. Knight, supra, a wife after the sale of her real estate under a decree, and the ex- piration of the time of redemption, obtained from the purchaser a con- tract for the sale of the certificate of purchase on the payment of a sum of money by a day named. Laboring under sickness, and in fact upon her death-bed, her hus- band repeatedly urged her to transfer her rights to him, promis- ing that he would make the pay- ment and save the property for her children, and thereby induced her to transfer the title to him. He obtained a loan on the prop- erty and paid the sum required to perfect the title in him, using some of the wife's money to do so. Held, that the law would hold him as trustee of the property, for the use of his wife's children, un- der a bill for accounting by the children. See Hill on Trustees (4th Am. ed.) p. 234; 2 Pomeroy's Eq. Jur., sec. 1055; Perry on Trusts, sec. 171; Williams v. Free- land, 29 N. J. 417; Brison v. Pri- son, 75 Cal. 529; Wood v. Rabe, 96 N. Y. 426; Davis v. Stromberg, 163 111. 557, and cases in that opinion, discussing the doctrine of trusts ex male/icio. See also, Wright V. Gay, 101 111. 241; 2 Washburn on Real Property (4th ed.), 482; Allen v. Jackson, 122 111. 567; Brophy v. Lawler, 107 111. 284; Fischbeck v. Gross, 111 111. 208; Henschel v. Mamero, 120 111. 662. 12— Section 112, Chapter 3, "Ad- ministration Act." Starr & Curtis Annotated Statutes of Illinois, with Jones & Addington's Supple- ments thereto. Vol. 1, p. 336; Vol. 4, p. 43; Vol. 5, p. 20, and cases cited under section of statute noted. Hurd's R. S. of 111. 1906, same section and chapter, p. 123. See also, Penn v. Folger, 182, 95; People V, Lanham, 189 111. 340; Marshall v. Coleman, 187 111. 569; People V. Kohlsaat, 168 111. 38; Ridgley v. People, 163 111. 115; Solomon v. Holman, 72 111. App. 353. 13— Dlngman v. Beal, 213 111. 238. 222 THE LAW OF ESTATES. 292. Equity never wants for a trustee. It is a rule that admits of no exception, that equity never wants for a trustee.^* Or, in other words, if a trust is once properly created, and it becomes necessary to operate the same, the incompetency, disability, death, or non-appointment of a trustee will not defeat the trust.^^ Thus, if property has been bequeathed in trust, and there is no trustee, or a trustee is nominated and can- not act on account of disabilities preventing the acceptance of the trust, or one who is dead, or refuses to take, is appointed, the chancery court will decree the execution of the trust by the personal representatives, if it is personal property, and by the heirs and devisees, if it is real estate. Property once charged with a valid trust will be followed in equity into whosoever hands it comes, and such will be charged with the execution of the trust, unless he or she is a purchaser for value, and without notice. The holder of the legal title and the absolute interest in property, may convert himself into a trustee b}^ making a valid declaration of trust upon good consideration ; or if he conveyed the property by some conveyance which was inop- erative in law, equity will hold him to be a trustee ; as if a man conveys property directly to his wife, a transaction inoperative in most of the states, equity will uphold the act and decree the husband to be a trustee.i'^ ''Equity will not suffer a wrong to be without remedy." The principle expressed by this maxim is indeed, the foundation of equitable jurisprudence, because equity jurisprudence had its rise in the inability of the common law courts to meet the requirements of justice.^^ Equity takes jurisdiction particularly when the donee has failed to act under a power in trust ;^^ and will reform trusts.^^ Courts of equity will not allow a clear trust to fail for want of a trustee ; nor will 14 — French v. Northern Trust Equity, 3rd ed., p. 53; 1 Pomeroy's Co., 197 111. 30. Eq., sec. 423. 15— Gillispie v. Smith, 29 111. 473. 18—1 Pomeroy's Eq., 2nd ed., io -, T^ r^ X ..r>^,^s ^ecs. 411, 412, post 1221. 16— 1 Perry on Trusts (1889) 38. -,„ t^. ,, , t. • . , 19 — Bispham s Principles of 17— Bispham's Principles of Equity, 2nd ed., 53, 58; Story's Eq. 641. TRUSTS AND TRUSTEES. 223 they alloM' a trust to fail by reason of any act or omission of the trustee.-" A trustee must defend and protect the title he holds ; also he must perform all the duties of a holder of the legal title.^i Trustees cannot delegate their powers and duties; and where it is doubtful what should be done, it is the duty of the trustee to go to court ; it will imply a power or trust and put itself in the place of a trustee, for the party beneficially interested, or the cestui que trust. 22 293. The rule in appointing trustees. First : The court will have regard to the wishes of the persons by whom the trust has been created, if expressed in the instrument creating the trust or clearly to be collected from it. Second : The court will not appoint a person to be trustee with a view to the interest of some of the persons interested under the trust, in opposition either to the wishes of the testator or testatrix, or to the interests of other of the cestui que trust. Everj^ trustee is in duty bound to look after the interests of all, and not of any particular mem- ber or class of members of his cestui que trust. Third: The court in appointing a trustee, will have regard to the question whether the appointment will promote or impede the execution of the trust ; for the purpose of the appointment is, that the trust may be better carried into execution.-^ 294. What property may be the subject of the trust. Every kind of valuable property, both real and personal, that can be issigned at law may be the subject-matter of a trust. Every itind of vested right which the law recognizes as a valuable may V)e transferred in trust, as a receipt for medicine, the copyright of a book, a patent right, a trade secret, or growing crops.^-* As a general rule, equity follows the law, and all persons who are 20—1 Perry on Trusts, 5th ed., sees. 402, 408, 473, 47G; White v. ^ecs. 248, 249; Gillispie v. Smith, Sherman, 168 111. 589. 29 111. 473. 23—1 Perry on Trusts (1889) 21 — 1 Perry on Trusts, 5th ed., sec. 39. sees. 326, 328. 24—1 Perry on Trusts, sees. 67, 22—2 Perry on Trusts, 5th ed., 68, 224 THE LAW OF ESTATES. capable of taking the legal title to property may take the equit- able title as cestui que trust through the medium of a trustee. 295. The same person appointed executor and trustee under will. The same person is often named executor and trustee under a will in such a manner that he may accept one office and decline the other. As if a person is appointed executor, and as executor is to act as trustee ; in such case the probate of the will, and qualification as executor, will be an acceptance of the trust. But if from the will it appears that the testator or testa- trix intended to give the trustee a distinct and independent character, probate of the will by the executor will not make him trustee, unless he accept the trust and qualify himself according to law. If the trust is given to one named, and the same per- son is afterwards appointed executor, the trust is not annexed to the office of executor. If, by the terms of the will, the execu- tor as executor is to keep the estate, or any portion of it, in his hands, and is to deal with it as a trustee, his bond will be held as security for the faithful performance of his duties, though such duties are much larger and different from those of an ordinary executor. If, however, the will contemplates that the executor, as such, is to perform only the ordinary duties of an executor, and that when the estate is settled by him, another duty is to arise to be performed, either by him or by another, then the bond of the executor is not security for those further duties; but the person who is to perform them must accept the office and give a bond for their per- formance.25 And the same author in the section re- ferred to, says: "In jurisdictions where executors and trustees are required to qualify and give bonds, it has been held, that an executor, who is also a trustee under the will, cannot be considered as holding any part of the assets as trus- tee, until he has settled his account at the probate court as executor, and has been credited with the amount as executor with which he is afterwards to be charged as trustee." In 25 — 1 Perry on Trusts (1889) sec. 263. TRUSTS AND TRUSTEES. 225 other cases it has been held, that the change of property, from the executor to the trustee, where they are the same persons, may be shown by some declaration or authoritative and notorious act on the part of the trustee, showing a change in the manner in which the property is held.^*^ The authorities are quite uniform in holding to the rule, that where the executor thus acts in a double capacity he must account in his capacity as executor, un- til he has transferred his account tovliimself as trustee, and given a bond as trustee. This is the general rule, but if the will is silent on the subject or requires bond to be given, in the absence of a statute granting the probate courts control in the first instance over testamentary trustees, it would seem to be the law in Illi- nois, that the probate courts and county courts having probate jurisdiction, have control of the executor only as such, and his administration and accounting in the particular estate ; but the trustee, even though it be the same person, in case the trust is abused, is amenable to courts of equity, who will restrain and compel a proper application of the trust estate.^^ Where persons act in the dual capacity of executors and trustees, and in law are distinguished as separate persons in their respective capacities, it is their duty as trus- tees to collect and receive what might become due to them as such, without loss or diminution by their neglect; and to that end and purpose they should keep a watchful eye on the sources of the funds, which generally arise during the administration of estates. The personal estate vesting in executors or adminis- trators the trustee can reach such only through such represent- atives when the estate is distributed in the courts of probate. It is also the duty of the executor or administrator to collect the claims and convert the property into money as the probate court may direct for the purpose of paying debts and charges against the particular estate administered. It is further the 26— Daggatt v. White, 128 Mass. 511; Daly v. Wilkier, 111 111. 383; 398; Croucher v. Dillon, 133 Mass. Leman v. Sherman, 117 111. 657; 91; Carruth v. Carruth, 148 Mass. Jones v. Jones, 124 111. 264; Ding- 431. man v. Beal, 213 111. 238. 27— Estate of Whitman, 22 111. 15 226 THE LAW OF ESTATES. duty of such representatives to render a just and true account of their doings to the court of probate as required by law ; such courts having full power and jurisdiction to call the represent- atives of an estate to account, and charge such with all losses accruing through their neglect or raisconduct.^s "While the con- duct of parties as executors or administrators as well as trustees, may be a proper subject of inquiry in determining as to their re- moval, the courts of probate have exclusive jurisdiction of their accounts as executors and administrators, unless in a proper case, that court should be superseded by the circuit court; and then such latter court takes jurisdiction of such matter, under its general chancery powers.^^ In Dingman v. Beat, it is held: Where a will devised a distinct part of the real estate to the "executor" in trust, with directions in the will to sell the same and reinvest the pro- ceeds in trust for specific purposes, a sale made by him in pur- suance of the directions in the will, is a sale in his capacity as trustee, and no bond by him is necessary to the validity of the sale, where none is required by the terms of the will.^** Under the statute of Illinois, as it now stands, where a will makes the same person an executor and trustee, the executor's bond cannot be construed for the faithful performance of the duties belonging to the trustee.^^ Where it is required or the will is silent on the subject, a separate bond as trustee must be given/' - 296. Voluntary or express trusts must be accepted. In vol- untary or express trusts, uo title vests in the proposed trustee, 28— Waterman v. Alden, 42 111. 32— People v. Hoffman, 182 111. App. 294. 405; Hinds v. Hinds, 85 Ind. 312; 29 — Waterman v. Alden, 144 111. Woerner on American Law of Ad- 105. ministration, 2nd ed., 260; People 30 — Gammon v. Gammon, 153 v. Petrie, 191 111. 497; 28 Am. & 111. 41; 213 111. 238. Eng. Ency. of Law, 2nd ed., 975, 31 — Sections 7 and 8, chapter 3, and cases cited in notes. Daggatt "Administration." Starr & Curtis v. White, 128 Mass. 312; Hale v. Annotated Statutes of Illinois, Hale, 146 111. 227; Gavin v. Cur- Vol. 1, pp. 271, 272; Hurd's R. S. tiss, 171 111. 640. of 111., 1905, p. 105; Dingman v. Beal, 213 111. 238. TRUSTS AND TRUSTEES. 227 by whatever instrument it is attempted to be transferred, unless the person named as trustee expressly or by implication accepts the office, or in some way assumes its duties and lia- bilities.33 Such a refusal to act does not invalidate the deed, will or other instrument ; it only relieves the trustee, and enables the court to appoint others.^* When a trust is created by impli- cation, result, or construction of law from the acts of the par- ties, they will be held by the law to the performance of the trust, whether they are willing or unwilling to accept the situation. This is the universal rule of equity, as the result or construction to be put upon the actions and conduct of the party relating to the property of others in his care, control or management. Gen- erally where trusts are created by will, and vest in the executor accepting and qualifying, he thereby accepts the trust or trusts in the will created and is estopped from denying the grantor's title.^^ Whoever takes property under a will, takes it in the character impressed upon it by the testator.^^ 297. Certain trusts must be in writing — others created by construction or operation of law, may be established by parol proof. The statute of Illinois provides: "All declarations or creations of trusts or confidences of any lands, tenements or hereditaments, shall be manifested and proved by some writing signed by the party who is by law enabled to declare such trust, or by his last will in writing ; or else they shall be utterly void and of no effect; Provided, that resulting trust or trusts created by construction, implication or operation of law, need not be in writing, and the same may be proved by parol. "^'^ 33— Cooper v. McClun, IG 111. 181 111. 182; Burbach v. Burbach, 435. 217 111. 547. 34— Nicoll V. Miller, 37 111. 387; 37— See section 9, chapter 59, Nicol V. Ogden, 29 111. 323. "Frauds and Perjuries." Starr & 35— Guilfoil V. Arthur, 158 111. Curtis Annotated Statutes of Uli- 600. nois, with Jones & Addington's 36 — Rankiu v. Rankin, 36 111. Supplements thereto. Vol. 2, p. 293; In re Corrington's Estate, 2021; Vol. 4, pp. 647, 648; Vol. 5, 124 111. 363; Crerar v. Williams, p. 270, and cases cited in each vol- 145 111. 625; Robinson v. Botkin, ume under section of statute 228 THE LAW OF ESTATES. This statute passed in 1833, has remained without change since then. Express trusts must be in writing, but no form of words are necessary.^^ The declaration of trust may be by letter to a third party .^^ Or by a memoranda.^'^ Or by a written promise to declare a trust." Or by answer in chancery.^^ Qj. y^y ^ printed pamphlet.'*^ Or by an affidavit.^* Or it may be by a deposition of the trustee, taken and read in the very cause in which the trust is sought to be proved and established.^^ In the case of Phillips v. Smith Park Commissioners it is held:'**' Under the Statute of Frauds, a conveyance, ab- solute on its face, can not be shown to have been made iu trust for another by parol evidence. That can only be proved by some writing signed by a person authorized to declare a trust. The trust may be manifested by a writing separate from the deed, showing an intention that the conveyance shall be in trust. If the grantee of a husband, while holding the title to the land conveyed, makes a declaration that he holds it in trust for the grantor's wife, by letter, affidavit, answer to a bill in chancery, or even by deposition, it may be binding on him, and be sufficient to show, in writing, a trust in her favor.^" If there be written evidence of the existence of the trust, the danger of noted. Kurd's R. S. of 111. 1905, 525; Reid v. Reid, 12 Rich. Eq. same section and chapter, p. 1103. 40 S. C. L. Eq. 213; Olcot v. By- 38—2 Washburn on Real Prop- num, 17 Wall. 44. erty, 507; Brown on Statute of 46—119 111. 626. Frauds, 99. 47 — And the same doctrine as 39 — Kingsbury v. Burnside, 58 held in Phillips v. South Park 111. 310; More v. Pickett, 62 111. Commissioners, supra (46), is held 158. or approved in the following 40 — Raybold v. Raybold, 20 Pa. cases: White v. Cannon, 125 111. St. 328. 412; Walton v. Fallansbee, 165 III. 41 — Bellamy v. Burrows, Talb. 486; Godschalk v. Fulmer, 176 111. 981. 66; Benson v. Demster, 183 III. 42— McLaurie v. Partlow, 53 111. 304; Dicken v. McKinley, 163 IU. 240. 326; White v. Ross. IGO 111. 69; 43— Barren v. Joy, 16 Mass. 221. Kellogg v. Pedicord, 181 111. 30; 44 — Barkworth v. Young, 4 Keith v. Miller, 174 111. 74; Kings- Drew, 1. bury V. Burnside, 58 111. 310. 45 — Penney v. Fallows, 15 Vt. TRUSTS AND TRUSTEES. 229 parol declarations, against which the statute was directed, is effectually removed.^* That case was decided by the Master of the Rolls in 1798, when construing the seventh section of the English statute respecting trusts, similar to section nine of the Illinois statute quoted above. The master adopted a letter as a clear declaration of trust by which he held there was a clear evidence in writing of a trust. Again in 1800^^ the Lord Chancellor relating to the adoption of a letter as evidence of a declaration of a trust, said: It is not necessary that it should be a declaration, as a writing signed by a party may be evidence of a trust admitted in that writing. The important question under all the decisions, has always been, was there evidence in writing manifesting and proving the existence of a trust, which may be applied to wills or other documents. In the construction of written instruments courts will endeavor, in all eases, to place themselves in the position of the contracting parties in the sense intended by the instrument construed.^^ Where there is an express trust, there cannot be a resulting trust. 5^ 298. Resulting trust. The doctrine of resulting trusts is stated by Perry on Trusts, as foUows:^^ "Where upon a purchase of property, the conveyance of the legal title is taken in the name of one person, while the consideration is given or paid by another, the parties being strangers to each other, a resulting trust immediately arises from the transac- tion, and the person named in the conveyance will be a trustee for the party from whom the consideration proceeds." This doctrine has been repeatedly applied in Illinois.^^ WJiere a con- fidential agent was employed to examine title to land, with a view of correcting defects therein, and to assist his employer in aequir- 48 — Lewin on Trusts, 63; Foster 51 — Stevenson v. Crapnell, 114 V, Hale, 3 Ves. Jr. 308. 111. 19; Kingsbury v. Burnside, 58 49—5 Ves. 308. 111. 310; Godschalk v. Fulmer, 176 50— Mosher v. Funk, 194 111. 111. 66. 354; Kann Moll v. Gardner, 214 52— Sec. 126 (1889 ed.). Ill- 248. 53— Vallette v. Tedens, 122 111. 607. 230 THE LAW OF ESTATES. ing title to adjacent lands, and, as such agent, was entrusted with his principal's abstracts of title, and received information to aid him in procuring the title, and, while so acting, acquires the title in his own name, in violation of his duty, he will in equity be held to have acquired such title in trust for his principal. So where property is purchased by a syndicate, and is con- veyed for purposes of convenience to designated party, such will be treated as a trustee for the syndicate.^"* And where a guardian invests money of his ward in the pur- chase of lands and takes title to himself, there is a resulting trust, and in such case the ward may follow the money into the lands and convey it as a trust estate.^^ A resulting trust does not grow out of the contract of parties, but is treated as an implication of law arising where land has been purchased with the money of one and the deed made to another. ^^ In such case, the person whose money pays for the land may follow the title to the land, and treat the holder of the legal title as a trustee, and compel, in equity, a conveyance.^^ It is necessary, however, to a trust of this kind, that the funds be advanced or invested at the time the purchase is made ; as it is not possible to raise a trust by the subsequent application of the money of a third person in satisfaction of the unpaid purchase money.^^ But the rule established in this state is to the effect, that a result- 54 — Frankenstein v. North, 79 Biggins v. Biggins, 153 111. 211 111. App. 677; Wallace v. Carpen- Dorman v. Dorman, 187 111. 158 ter, 85 111. 590. Monson v. Hutchin, 194 111. 434 55— Rice v. Rice, 108 111. 199. Pool v. Phillips, 167 111. 439 56— Williams v. Brown, 14 111. Pickler v. Pickler, 180 111. 173 200. Smith v. Willard, 174 111. 542 57— Sheldon v. Harding, 44 111. Crone v. Crone, 180 111. 603; Dwy» 68; McDonald v. Stow, 109 111. 40 Scheerer v. Scheerer, 109 111. 11 Fischbeck v. Gross, 112 111. 208 Harris v. Mclntyre, 118 111. 275 Donlin v. Bradley, 119 111. 412 Henckel v. Mamero, 120 111. 660 Reynolds v. Summer, 126 111. 58 er V. O'Connor, 200 111. 54; Crouch' er V. Croucher, 203 111. 530. 58— Reed v. Reed, 135 111. 482; Pickler v. Pickler, 180 111. 173; Pain V. Farson, 179 111. 194; De- vine V. Devine, 180 111. 451; Dick V. Dick, 172 111. 580; Bank v. Bees- ley, 159 111. 125. TRUSTS AND TRUSTEES. 231 ing trust will not be enforced after an unreasonable delay in seeking their enforcement, unless there is shown an equitable excuse for the delay. ^^ 299. Constructive trusts. May be proved and established by parol; such a trust is well defined in Fope v. Dapray,^^ the doctrine is one that arises, where a person clothed with some fiduciary character, by fraud or otherwise gains something for himself.^^ It is further defined and applied, where "a person obtains the legal title to property by virtue of a con- fidential relation and influence, under such circumstances that he ought not, according to the rules of equity and good conscience to hold and enjoy the beneficial interests of the property;" courts of equity, in order to administer complete justice be- tween the parties, will raise a trust, by construction, out of such circumstances or relations, and this trust they will fasten upon the conscience of the offending party and will convert him into a trustee of the legal title, and order him to hold it, or execute the trust in such manner as to protect the rights of the defrauded party and promote the safety and interests of society.^2 This rule has been quoted with approval and ap- plied in the cases of Beach v. Dyer, and Allen v. Jackson.^^ As a general rule one of two elements is necessary on which to base or establish a constructive trust. There must be some element of fraud, either positive or constructive, which existed at the time of the transaction and which influenced the cestui que trust, or there must exist a confidential relation and influ- ence, by virtue of which one has obtained the legal title to property which he ought not, according to the rules of equity and good conscience, to hold and enjoy. The rule is laid down in Perry on Trusts, as follows:^* "Constructive trusts may be divided into three classes, to be determined according 59 — Harris v. Mclntyre, US 111. 61 — Perry on Trusts, Sec. 27; 275; Mayfield v. Forsyth, 164 111. Reed v. Reed, 135 111. 482. 36. 62— Perry on Trusts, Sec. 166. 60—176 111. 478. 63—93 111. 295; 122 111. 567. 64 — Perry on Trusts, Sec. 168. 232 THE LAW OF ESTATES. to the circumstances under which they arise : First, trusts that arise from actual fraud practiced by one man upon another. Second, trusts that arise from constructive fraud. In this, class the conduct may not be actually tainted with moral fraud or evil intention, but it may be contrary to some rule estab- lished by public policy, for the protection of society. Thus, a purchase made by a guardian of his ward, or by a trustee of his cestui que trust, or by an attorney of his client, may be in good faith and as beneficial to all parties as any other trans- action in life, and yet the inconvenience and danger of allow- ing contracts to be entered into by parties holding such rela- tions to each other are so great that courts of equity construe such contracts prima facie to be fraudulent, and they construe a trust to arise from them. Third, trusts that arise from some equitable principle independent of the existence of any fraud, as where an estate has been purchased and the consid- eration money paid but the deed is not taken, equity will raise a trust, by construction, for the purchaser." The rule is also well established, that courts of equity carefully scrutinize con- tracts between parent and children, by which the property of the parent is conveyed to children. The position and influence of a parent over a child are so controlling that the transaction should be carefully examined; and, sales by child to parent must appear to be fair and reasonable. These rules of equity are applied in the cases in note below."^ 300. Trusts by implication or operation of law. A husband had real estate conveyed to his wife, to be held for his use, in case he should survive her ; but if he should die first, the prop- erty was to belong to his wife ; she at the time of this convey- ance to her executing to her husband a writing, showing she held the property in trust. Shortly before her death the wife 65— Maynard v. Maynard, 194 232-236; White v. Ross, 160 111. 56; 111. 45-48; Thomas v. Whitney, 186 Stahl v. Stahl, 214 111. 131; Fred- Ill. 225; Dowie v. Driscoll, 203 111. rick v. Fredrick, 219 111. 568; 480-490; Allen v. Jackson, 122 111. .Johnson v. Buck, 220 111. 226; 567; Larmon v. Knight, 140 111. Compton v. McCaffree, 220 111. 137. TRUSTS AND TRUSTEES. 233 conveyed the property to a third party in trust for her infant son by a former marriage. Under this statement of facts, it was held, that a court of equity would set aside the deed in violation of the trust, and vest the title in. the husband.c<^ And so, a trust by implication and operation of law will be declared where the facts warrant/''^ Where one obtains a conveyance, by pretend- ing to act as an agent for another, he can hold the legal title only in trust for his principal and as security for the money ad- vanced.^^ So where a son is authorized by his mother to collect and invest her money for her, he to retain as compensation all of the profits in excess of a certain per cent, was regarded as a trustee, and not as a borrower, the facts showing he kept the money together, and invested it from time to time, and spoke of it as his mother's money .♦^^ And where one obtains a conveyance from an insane person wrongfully and by improper means, he may in equity be treated as holding the title as trusteeJ'^ So where a creditor voluntarily assumes what appears to be a friend- ly relation to his debtor, ostensibly to enable the debtor and his wife to save their homestead from other creditors ; and by means of the confidence thus inspired obtains the title, equity will raise a trust and compel the creditor to perform his promise."^ Where by will land is to be sold and the proceeds are to be held as a trust fund, the income to go to the widow for life, and upon her death to a son for life, and upon his death to his children ; if the son buys the land and gives his note, and after- wards sells a part to the widow and she gives her note to the executor who credits it on the son's note, her note is part of the trust fundJ^ And upon settlement of conflicting claims to land, one of the parties upon receiving title is to select and 66 — Hazeltine v. Fourney, 120 53; Phillips v. Edsall, 127 111. 535. Ill- 493. 69— Clapp v. Emery, 98 Ul. 523. 67 — Krebaum v. Cordell, 63 111. 70 — Long v. Fox, 100 111. 43. 23; White v. Cannon, 125 111. 412; 71— Gruhn v. Richardson, 128 Hagan v. Varney, 147 111. 281. 111. 178; Allen v. Jackson, 122 111, 68— Reigard v. McNeil, 38 111. 567. 400; Halloran v. Fitzgerald, 71 111. 72— Woodburn v. Woodburn, 123 111. 608. 234 THE LAW OF ESTATES. convey a certain number of acres to the other, in consideration of which the latter is to release his claim to the residue, the former upon receiving title holds that number of acres in trust for the latter. '^3 And where property is obtained by fraudulent practice, it will be held upon a constructive trust for the person defrauded.'^ ^ The rule is therefore well established, and univer- sally enforced to the effect, that where the acquisition of a legal title is tainted with fraud, actual or equitable, or where the trust depends upon some equitable rule independent of fraud, equity, to prevent injustice, will raise a trust for the party who in equity is entitled to the beneficial enjoyment.'^^ And it is held, the word "trust" as used in section 70, chapter 3, of the Admin- istration Act,'^^ making unaccounted for trust funds a claim of the 6th class, is restricted to technical trusts which the law implies as growing out of contracts. 301. Trusts ex maleficio. Hill on Trustees gives the fol- lowing as the settled doctrine:'''^ "Where a person by means of his promises, or otherwise by his general conduct, pre- vents the execution of a deed or will in favor of a third party with a view to his own benefit, such is clearly within the first head of fraud, as distinguished by Lord Hardwick, viz. : That arising from facts or circumstances of imposi- tion; and the person so acting will be decreed to be a trustee for the injured party, to the extent of the interest of which he has been def rauded. "^^ Where the wife of a copy- holder prevented her husband from vesting the copyr hold in his son after his death, by promising, herself, to 73— Jackson v. Horton, 126 111. ments thereto. Vol. 1, p. 300; Vol. 566. 4, p. 36; Vol. 5, p. 18; and cases 74 — Haynes v. Mclllwain, 53 111. cited under section of statutes in 652. question in each volume. Hurd's 75— Chicago Union Nat'l Bank R. S. of 111. 1905, p. 116. Felsen- V. Goetz, 138 111. 127. thai v. Kline, 214 111. 121. 76— Section 70, Chap. 3, "Admin- 77— 4th Am. ed., p. 234. istration," clause 6. Starr & Curtis 78— Larman v. Knight. 140 111. Annotated Statutes of Illinois, 236; Hill on Trustees, 4th Am. ed. with Jones & Addington's Supple- 234. TRUSTS AND TRUSTEES. 235 make it over to him if he appointed her his successor instead of his son ; in such case, she was decreed to be a trustee for the son, notwithstanding the statute of frauds, on the ground of fraud. '^^ And so it is held to be within the principle laid down, that where a person, by means of his promises induces a party not to let real estate descend as it otherwise would descend as intended to his heir. In such case the injury to the legatee or grantee, is not considered different or greater than is the injury to the heir, if he is by like means, deprived of what would otherwise have been his inheritance.^" "A second well settled and even common form of trust ex maleficio occurs whenever a person acquires the legal title to land or other property by means of an intentionally false and verbal promise to hold the same for a certain specified purpose — as, for example, a promise to con- vey the land to a designated individual, or reconvey it to the grantor, and the like — and having thus fraudulently obtained the title, he retains, uses and claims the property as absolutely his own, so the whole transaction by means of which the owner- ship is obtained, is in fact a scheme of actual deceit, "^^ A trust ex maleficio was established, and it was therefore held under the facts in the case, that the heirs of the deceased succeeded him as trustee.^ 2 g^j^ in the case of Davis v. Stramnhaugh,^^ the evidence did not establish such a trust, that case turning upon the refusal of the trustee to execute an express trust, and the denial of the existence of the trust by the trustee, the court holding, the record did not constitute such fraud as takes the case out of the statute. In order to take the case out of the statute and establish a trust ex maleficio, the transaction by means of which the ownership of property is obtained must be in fact a scheme of actual deceit — in other words, there must be an element of positive fraud accompanying the promise, and by means of which 79 — Knight v. Larmon, 140 III. 81 — 2 Pomeroy's Eq. Jur., Sec, 236. 1055. 80— Knight v. Larmon, 140 111. 82— Knight v. Larmon, 140 111. 236. 236, 83—163 111. 557. 236 THE LAW OF ESTATES. the acquisition of the legal title is wrongfully consummated, otherwise the Statute of Frauds would be virtually abrogated. So in all such cases, the evidence must be clear to establish such a trust, and the evidence must show directly or indirectly an intentionally false and fraudulent verbal promise to hold the property for a certain specific purpose.^* 302. Spendthrift trusts. Such trust estates have been recog- nized, generally, by most of the courts of the United States; and their treatment of the subject is recognized as the Ameri- can doctrine in relation to this subject. These trusts are cre- ated for the purpose of providing for the maintenance of a son or a daughter, or a designated relative, to secure such against their own improvidence and incapacity for self-protection. Trust estates of this character have been created and enforced in Illinois, and are now fully recognized and form a part of the well settled doctrine of courts of equity. ^^ In the case of Steib V. Whitehead, it was urged upon the court, that to give effect to such provisions in the will before it, would be simply permitting individuals to abrogate and annul the laws of the state by private contract; to such proposition the court said: "But while this is undoubtedly true, it does not necessarily fol- low that a father may not, by will or otherwise, make such rea- sonable disposition of his property when not required to meet any duty or obligation of his own, as will effectually secure his child a competent support for life, and the most appropriate, if not the only, way of accomplishing such an object is through the medium of a trust. Yet a trust, however carefully guarded otherwise, would in many cases fall far short of the object of its creation, if the father, in such case, has no power to pro- 84— Allen v. Jackson, 122 111. 85—26 Am. & Eng. Ency. of 567; Moore v. Horsley, 156 111. 36; Law, 2d ed., 137, et seq., and cases Gruhn v. Richardson, 128 111. 178; cited bearing on the subject of Reed v. Peterson, 91 111. 288; Big- "spendthrift trusts." Steib v. gins V. Biggins, 133 111. 211; Lan- Whitehead. Ill 111. 247; Kaufman try V. Lantry, 51 111. 548. v. Breckinridge, 117 111. 305; Ben- nett V. Bennett, 217 111. 440. TRUSTS AND TRUSTEES. 237 vide against the schemes of designing persons, as well as the improvidence of the child itself. Whatever the reverses of fortune may be, the child is provided for, and is effectually placed beyond the reach of unprincipled schemers and sharp- ers. The tendency of present legislation is to soften and ameli- orate, as far as practicable, the hardships and privations that follow in the wake of poverty and financial disaster. The courts of the country, in the same liberal spirit, have almost uniformly given full effect to such legislation. The practical result of this tendency, we think, upon the whole, has been beneficial, and we are not inclined to render a decision in this case which may be regarded as a retrograde movement. ' ' 303. Conveyance to use — statutes of uses. The statute in that regard in Illinois is as follows: "Where any person or persons stand or be seized, or at any time hereafter shall stand or be seized of and in any messuages, lands, tenements, rents, services, reversions, remainders or other hereditaments, to the use, confidence or trust of any other person or persons or of any body politic, by reason of any bargain, sale, feoffment, fine, recovery, covenant, contract agreement, will or otherwise, by any manner of means whatsoever, in every such case all and every such person or persons, and bodies politic, that have or hereafter shall have anj' such use, confidence or trust, in fee simple, for term of life, or for years or otherwise, or any use, confidence or trust in remainder or reversion, shall from thence- forth stand and be seized, deemed and adjudged in lawful seizin, estate and possession of and in the same messuages, lands, tenements, rents, services, reversions, remainders and hereditaments, with their appurtenances, to all intents, con- structions and purposes in law of and in such like estates, as they had or shall have in use, confidence or trust of or in the same; and that the estate, right, title and possession that was or shall be in such person or persons that were or hereafter shall be seized of any lands, tenements or hereditaments, to the use, confidence or trust of any such person or persons, or of any body politic, be from henceforth clearlj-- deemed and ad- 238 THE LAW OF ESTATES. judged to be iu Iiiin, her or them tliat have or hereafter shall have such use, confidence or trust, after such quality, manner, form and condition as they had before, in or to the use, con- fidence or trust that was or shall be in them. "^^ This act has been in force in Illinois since 1827, and though rewritten in 1845 and 1872, was not changed in the revision of those dates. The statute practically re-enacts the substance of the statute of uses, 27 Henry VIII. Under the operation of this statute, a conveyance in trust, or to the use of any person, which requires no duties, prescribes the execution of no trust, but leaves the trustee only a passive title, carries to the cestui que trust lawful seizin, estate and possession. In such case there is not a mere equitable title, but an actual seizin and possession in fact — not only a right of entry, but an actual estate. The cestui que trust may, consequently, convey the estate by deed without the intervention of his trustee. Livery of seizin is abolished by the first section of the Conveyance Act, and the title is thereby absolutely vested in the donee, grantee, bargainee, etc., independently of the Statute of Uses. Hence, under this statute, a deed in the form of a bargain and sale must be regarded as having the force and effect of a feoffment. Under the Statute of Uses, a feoffment to A, for the use of or in trust for B, would pass the legal title to B. In a deed of purely bargain and sale, independently of the first section of the conveyance act, the rule would be different, and the title would vest in the bargainee. Without the first section, the legal title would be in the trustee. In Witham v. Brooner, it was held,^'^ the ' trust in question was a passive one, and the deed operated as a feoffment would at common law, and vested the title in the cestui que trust, by virtue of the Statute of Uses, that statute executing itself. It conveys the possession 86 — Section 3, chapter 30, "Con- Vol. 4, p. 254, and cases cited in veyances," Starr & Curtis Anno- each volume under section of stat- tated Statutes of Illinois, with ute in question. Jones & Addington's Supplements 87 — 63 111. 346; Witham v. thereto. Vol. 1, p. 914, et seq.; Brooner. TRUSTS AND TRUSTEES. 239 to the use, and transfers the use to the possession; and by- force of the statute the cestui que trust had the lawful seizin, estate and possession. Three things must concur to bring an estate in land, within the Statute of Uses: First, there must be a person seized to a use ; second, a cestui que trust ; third, a use in esse. When these things occur, the statute operates instantly.^^ There are also cases in which, it having been the duty of the trustee to convey to the heir at law, it will be pre- sumed, after the lapse of considerable time, that such conveyance has been made.^^ In a bill filed to set aside certain con- ditions in a will, it was sought to make the gift in question, subject to a condition subsequent; upon the theory, that the trust created in the executors by the will, was a mere naked or passive trust, and therefore the condition being void, the title passed immediately to plaintiff in error, under section 3 of the Conveyance Act.^*' 304. When the statute takes effect and executes the trust. In the case of Silverman v. Kristufek,^^ the doctrine and rules are clearly set forth by Chief Justice Magruder, speaking for the court: "In order to bring an estate within the operation of the Statute of Uses, so as to execute the use in respect to the same, there must be a concurrence of three things ; first, a person seized to a use ; second, a cestui que use in esse; and third, a use in esse either in possession, reversion or remainder. "^2 Tj^g third section of our Conveyance Act, which 88 — Lynch v. Swayne, 83 111. title in fee to the land could not 336; Kirkland v. Cox, 94 111. 411, vest in the plaintiff in error, as et seq.; Witham v. Brooner, 63 111. the condition was precedent to the 346. vesting of such title, the devise 89 — 1 Perry on Trusts, Sec. 350; being of realty. See also Perry Gibson v. Rees, 50 111. 383; Kirk- on Trusts, 200; Hill on Trustees, land V. Cox, 94 111. 411-413. 4th Am. ed. 376. 90— Randall v. Boston, 172 111. 91—162 111. 229. 439. In this case it is held, as 92 — 2 Washburn on Real Prop- the trust was not a naked or pas- erty, marg. p. 113; Witham v. sive one, and if the conditions in Brooner, 63 111. 334; 27 Am. & Eng. the will should be held void, the Ency. of Law, p. 911, and cases cited under Statute of Uses. 240 THE LAW OF ESTATES. is substantially the same as the Statute of Uses of 27 Henry VIII., provides, that, "where any person shall stand seized of and in any lands to the use or trust of any other person or per- sons or of any body politic," etc.^^ The cestui que use must be a person or body politic — a natural person, or an artificial per- son, like a corporation. Where the estate is limited to a person not in esse, or capable of being ascertained, the statute will have no operation, until the cestui que use comes into being, or is ascer- tained. Where there is no determinate person to claim as bene- ficiary there is wanting an essential element of a trust, and where the trustee must hold the legal title until the beneficiaries are determined, the case is not one where the statute transfers the legal estate to the use.^^ 305. Where the statute of uses does not execute the trust. The doctrine in Illinois is well settled and firmly established, to the effect, that where an instrument of conveyance or will, imposes on the trustees active duties with respect to the trust estate, such as, to sell and convert into money, or to lease the same and collect the rents, pay taxes, and make the necessary repairs, etc., and pay the net proceeds to the beneficiary it creates an active trust which the statute does not of itself execute.^ ^ Where particular things are to be done by the trus- tees, it is necessary that the estate should remain in them so long at least as those particular purposes require it.^^ But an active trust may become passive and trust may become executed, 93— Starr & Curtis Annotated 95 — Meecham v. Steel, 93 111. Statutes of Illinois, with Jones & 146; Kellogg v. Hale, 108 111. 164; Addington's Supplements thereto. Silverman v. Kristufek, 162 111. Vol. 1, p. 914; Vol. 4, p. 254, and 229; Ure v. Ure, 185 111. 216; 1 cases cited under section of stat- Perry on Trusts, 3d ed.. Sec. 305; nte in question in each volume; 2 Washburn on Real Property, 5th Hurd's R. S. of 111. 1905, p. 464. ed., p. 163. 94—2 Washburn on Real Prop- 96—1 Hill (S. C.) 413; Silver- erty, 5th ed., marg. pp. 115, 116, man v. Kristufek, 162 111. 229; 163; Preachers' Aid Society v. Chicago Terminal Transfer Co. v. England, 106 111. 125; Dean v. Winslow, 216 111. 166. Long, 122 111. 447. TRUSTS AND TRUSTEES. 241 by the Statute of Uses.^'^ In the ease of Chicago Terminal TranS' fer Co. V. Winslow, it is said:^^ "In construing the Statutes of Uses, three rules are applicable, whereby conveyances are ex- cepted from its operation, viz.: (1) "Where a use is limited upon a use; (2) Where a copyhold or leasehold estate or personal prop- erty was limited to uses; (3) Where such powers or duties were imposed, with the estate, upon a donee to uses that it was nec- essary that he should continue to hold the legal title in order to perform his duty or execute the power.®^ Special or active trusts were never within the purview of the statute, and if any power or duties are imposed upon a donee to uses, or, in other words, a trustee, which makes it necessary that he should continue to hold the legal title in order to perform his duty or execute the power, the trust is such a special or active trust as will remain unexecuted by the statute. Among the uses falling within these rules is that of investing the proceeds or principle of applying the income to the estate.^ Also to raise a certain sum of money for some prescribed purpose from the income of the estate f to exercise control over the estate for the purpose of preserving contingent remainders ;3 or to protect the estate for a given time, or until the death of some person, or until division.^ 306. Title to personal property not affected by statute of uses. The title to personal property included in a trust devise of both real and personal property is not affected by the Stat- ute of Uses.^ 97— Meecham v. Steel, 93 111. Ch. 87; Wright v. Purson, 1 Edw. 146; Kirkland v. Cox, 94 111. 411; Ch. 110. Kann Moll v. Gardner, 214 111. 3 — Vanderhayden v. Crandall, 2 248; O'Melia v. MuUarky, 124 111. Denio. 9. 506; Roth v. Michalis, 125 111. 325. 4— Williams v. McConico, 36 Ala. 98—216 111. 166. 22; Nelson v. Davis, 35 Ind. 474; 99— Hill on Trustees, 230; 1 Per- Morton v. Barnett, 39 Am. Dis. ry on Trusts, 2d ed., Sec. 300. 575; Beach on Trusts, Sec. 403; 1 — Exter V. Odiorne, 1 N. H. Silverman v. Kristufek, 162 111. 232; Ashurst v. Given, 5 W. & S. 229. 323. . 5—27 Am. & Eng. Ency. of Law, 2 — Stanley v. Leonard, 1 Edw. p. Ill, and cases cited in note 1; 16 242 THE LAW OF ESTATES. 307. Following trust fund. A trust in personal property may be created by parol, and the beneficiary of the fund may follow it in all forms of investment it may assume.^ 308. Statute of limitations. As a general rule the statute does not run where a trust is created and will not be a bar to a recovery against the trustee or of the fund. The statute of limitations never begins to run in any event to bar a recovery of a trust fund until subsequent to the disavowment of the trust by the trustee.'^ 309. Perpetuity. The general rule, and the most acceptable and often quoted, is defined to be "a limitation, taking the subject thereof out of commerce for more than a life or lives in being and twenty-one years and beyond, with, in case of a post- humous child, the time of gestation added, computed at nine months.^ When trusts created violate rules of perpetu- ity, they are void; unless they come within the rule laid down in Lawrence v. Smith, as applied and adopted from the case of Tilden v. Green, where it is said:^ "The appel- lants invoke the aid of the principle that where several trusts are created by a will which are independent of each other and each complete in itself, some of which are lawful and others unlawful, and which may be separated from each other, the illegal trust may be cut off and the legal ones permitted to stand. This rule is of frequent application in the construc- tion of wills, but it can be applied only in aid and assistance of the manifest intent of the testator, and never where it 3 Jarman on Wills, p. 51, note 2; drlch, 205 111. 242; Helntz v. Den- Glover V. Condell, 163 111. 566; Ure nis, 216 111. 487. V. Ure, 185 111. 216; Chicago Ter- 7— Albretch v. Wolf, 58 111. 186; minal Transfer Co. v. Winslow, Hancock v. Harper, 8^ 111. 445; 216 111. 166. Maher v. Aldrich, 205 111. 255. 6— Bret v. Yeaton, 101 111. 242; 8— Biglow v. Cady, 171 111. 229; Sholty V. Sholty, 140 111. 81; Price Henderson v. Virden Coal Co., 78 V. Laing, 152 111. 380; White v. 111. App. 437; Schaefer v. Schaefer, Sherman, 168 111. 589; Maher v. Al- 141 111. 337. 9—163 111. 165; 130 N. Y. 29. TRUSTS AND TRUSTEES 243 would lead to a result contrary to the will, or work injustice among the beneficiaries, or defeat the testator's scheme for the disposal of his property. The rule, as applied in all reported cases, recognizes the limitation, that when some of the trusts in a will are legal and some illegal, if they are so connected together as to constitute an entire scheme, so that the presumed wishes of the testator would be defeated if one portion was retained and other portions rejected, or if manifest injustice would result from such construction to the beneficiaries, or some of them, then all the trusts must be construed together, and all must be held illegal and must fall. "^^' 310. Equitable conversion. The universal rule as laid down by text writers, and ado^jted in Illinois by numerous authori- ties, is taken from the leading case of Fletcher v. Ashburner, it is as follows :^i "Nothing is better established than this principle, that money directed to be employed in the purchase of land, and land directed to be sold and turned into money, are to be considered as that species of property into which they are directed to be converted ; and this in what- ever manner the direction is given, whether by will or by way of contract, marriage articles, settlements or otherwise; and whether the money is actually deposited or only covenanted to be paid, whether the land is actually conveyed or only agreed to be conveyed, the owner of the fund or the contracting par- ties may make land money, or money land.^- A total failure of the objects of conversion prevents any conversion from taking place, whether under deed or will.^^ But if there is a partial failure, the heirs usually take, and not the personal representatives of the testator; and in such case the heirs take as money, and the law of the domicile will govern.^'* But 10— Hale V. Hale, 125 111. 399 Schaefer v. Scliaefer, 141 111. 337 Post V. Roherbach, 142 111. 600 Lawrence v. Smith, 163 111. 164 111. 103; .Jennings v. Smith, 29 111. 120; Ridgeway v. Underwood, 67 111. 419; Wright v. Marshall, 72 111. 585. Pitzel V. Schneidei', 216 111. 87. 13 — Roper on Legacies, 542. 11—1 Bro. C. C. 497. 14— Richards v. Miller, 62 111. 12— Baker v. Copenbarger, 15 423. 244 THE LAW OF ESTATES. in some cases, under the construction given to wills, in order to arrive at the intention of the testator, the personal repre- sentative takes, and if he does it is in money. The rule is laid down by Jarman on Wills :^ ^ " Every conversion, however ab- solute, will be deemed to be a conversion for the purposes of the will only, unless the testator distinctly indicates a different in- tention. ' ' Therefore whoever takes property under a will, takes it in the character impressed upon it by the testator.^ *^ Where the will directs that the property be converted, land into money or money into land, the conversion is in equity regarded as made, the direction being imperative.^''' But where the will gives a mere option, a mere power to be exercised at discretion, the conver- sion is regarded as made only when it is made in fact.^* So where a mere direction to sell is not acted upon, and no trust is created under the will, it does not amount to a conversion.^^ Equity never requires a useless act.^*^ Land required to be re- duced to money is regarded as personal property.^i Thus, a will giving to testator's wife all his personalty and one-third of his real estate, and giving to aliens the rest ^nd residue of his "estate," making his wife executrix, and giving her full power to take possession of, manage and control his estate, with power to sell and convey, divide, and distribute it, ' ' but the proceeds ta be by her given to my legatees," works an equitable conversion of the two-thirds of the real estate.22 A testator provided by 15 — 1 Jarman on Wills, Sec. 558. 22 — Greenwood v. Greenwood, 16 — Strode v. McCormick, 158 178 111. 387. In this case it was 111. 142; Burback v. Burback, 217 said: In order to understand the 111. 547. testator's circumstances, the court, 17 — Davenport v. Kirkpatrick, in construing a clause of a will 156 111. 169; Ducker v. Burnham, disposing of the residue of the tes- 146 111. 9. tator's estate to the children of 18 — Ducker v. Burnham, 146 111. his deceased brother, may receive 9. evidence as to the character of the 19 — Gill V. G. T. M. Co., 92 111. testator's property, that the chil- 254. dren of the deceased brother were 20 — Higgins v. Lansing, 154 111. non-resident aliens, and that the 301. testator knew that fact. It will 21 — Nevitt V. Woodburn, 175 111. be presumed the testator knew the 376. law of the State disqualifying nc«ii- TRUSTS AND TRUSTEES. 245 his will, that one of his children should receive a certain sum as compensation for services rendered tes- tator, and that he might have the privilege of tak- ing a certain tract of testator's land therefor at the appraisement. The remainder of his property he divided among his children equally, providing, however, that any debts owing the estate by any child, should be deducted from such child's share. The will further recited, that it was the desire of the testator, that, if the heirs could agree, they should divide the real estate, but, in case they could not, the executor was authorized to sell the lands. A creditor of one of the heirs, after the testator's death, levied on and sold the interest of the heir in the testator's lands. The heirs never agreed to divide the land. Held, that by the will there was an equitable con- version of real into personal property, and the debtor heir took no interest in the real estate, and hence the execution purchaser acquired no title which would support partition. ^3 Therefore it is the established rule in Illinois, where land is converted into money, under the provisions of a will, to be divided among the legatees, it must be treated as a devise of money, and not land.^-* Equity has power, in a proper case, to authorize a conversion of trust property contrary to the provi- sions of the will creating the trust.^s 311. Relation of creditors and remaindermen to trust. It is said in Kami Moll v. Gardner -."^^ It is understood by the law, that when a testator conveys land, by will, to a trustee and imposes active duties upon him, such as the care and management of the property and the paying of the income resident aliens from taking real or holding title to land in Illi- estate, and that he did not intend nois. to die intestate as to a part of 23 — Robins v, Botkin, 181 III. the property. The purpose of the 182. act disqualifying aliens as dev- 24 — English v. Cooper, 182 III. isees was not to inhibit them 203. from becoming beneficiaries under 25 — Johnson v. Buck, 220 111. wills, but merely from acquiring 226. 26—214 III. 248. 246 THE LAW OF ESTATES. to certain persons, such a will creates an active trust and the legal title to the property vests in the trustee; and, judgment creditors can obtain no lien, as against any of the remainder- men, so long as the legal title remains in the trus- tee.2'^ ^j2(j if the language of the will is such that the trustee at the time of the termination of the trust, is given the power of sale and disposition of the property and is to divide the proceeds among certain persons therein named, such disposition may be made, notwithstanding the fact that there are judgment creditors who have claims against the per- sons named in the will as remaindermen. This is the reason that such remaindermen have no vested title, as the legal title is in the trustee with power to sell.^^ If the bequest is treated as a gift the remainderman can be reached by creditors.^^ 312. Trust will not be defeated if beneficiary is trustee for himself and others. In Summers v. Higlcy.^^ A will devising to testator's wife all of his estate, "to be used by her for her own support and for the maintenance and education of my children," with directions, as executrix, to bestow sums of money upon the testator's father if he became infirm and dependent. Held, such devise did not pass a fee, but did create a trust. The court saying: "It is clear to our minds that by the first provision of the will, which devises the property to the widow, the testator intended to devise, and did devise the property to her in trust for certain specified uses — that is, for her own support and for the maintenance and education of their children named in the will. The fact that she is a bene- ficiary as well as trustee does not defeat the trust.^i 27 — King V. King, 168 111. 273. under section of statute in ques- 28— Binns v. La Forge, 191 111. tion. Kurd's R. S. of III. 1905, p. 598; section 49, chapter 22, Starr 233; Lawrence v. Lawrence, 181 & Curtis Annotated Statutes of 111. 248. Illinois, with Jones & Addington's 29 — Barita v. Boyd, 118 111. 190; Supplements thereto. Vol. 1, p. Railsback v. Lovejoy, 46 111. 446. 49; Vol. 4, p. 106; Vol. 5, p. 54, 30—191 HI. 193. and cases cited in each volume 31 — 1 Perry on Trusts, Sec. 59. TRUSTS AND TRUSTEES 247 The property is given to her to be used by her for those purposes. It seems to us, the language is as plain as it would have been had it stated in express terms that the property was given to her in trust, and then had stated the uses to which it was to be devoted.^^ ^^^j where trustees are the "legatees," title to share of residue vests by will in them during period of trust.^^ 32— Bennett v. Bennett, 217 111. Society v. Mead, 131 111. 338; Craw- 440. ford V. Cemetery Association, 218 33 — Woman's Union Missionary 111. 407. CHAPTER XIII TRUSTS AND TRUSTEES— CONTINUED Sec. 313. Co-trustees are collective trustees. 314. Trustees cannot delegate their powers, but may em- ploy attorneys or agents. 315. Trustee accepting the trust cannot renounce the same to free himself from liability. He must seek his discharge by accounting, either to the cestui que trust, to the court appointing him, or take his chance of being called to ac- count by any court of equi- ty having jurisdiction. 316. Power of trustees coupled with an interest. 317. The trustee's title to land. 318. Conveyance from trustees or their heirs necessary to re- vest title. 319. Trustee must defend and pro- tect his title. 320. The same rules applied in equitable and legal estates. 321. Trustee cannot create lien on assets he holds. Sec. 322. Reasonable care and dili- gence exacted of trustee. 323. The trustee must account for all trust property coming to his hands. 324. Where trustee is guilty of fraud or willful default. 325. Tracing and restoring trust fund. 326. Duty of trustee to collect as- sets of trust estate. 327. Trustee must keep clear and accurate accounts. 328. "Where trustees act in good faith. 323. Trustee cannot purchase at his own sale. 330. Trustee cannot make profit from trust property. 331. What investments of the trust fund should be made. 332. What considered improper in- vestments of trust funds. 333. Intermeddlers. 334. Bonds of trustees. 335. Compensation of trustees. Sec. 313. Co-trustees are collective trustees. In law there is no such person known as an acting trustee apart from his co-trustee; all who accept the office are acting trustees. If any one trustee who has accepted, refuses to join in the pro- posed act, or is incapable, the others cannot proceed without 248 TRUSTS AND TRUSTEES— CONTINUED. 249 him, but an application must be made to court.^* In Casey v. Canavan,^^ it is held : Where three trustees are charged with the duty of selling real estate and distributing the proceeds in stated proportions, they have no right to permit one of the trustees to alone receive certain shares and distribute them. In the case of Mannhardt v. Illinois Staats Zeitung Co?^ it is held: Where a stockholder in a corporation created a trust of his stock therein and appointed two persons to act jointly as trustees to vote the same neither of such trus- tees could assume to vote such stock contrary to the direction of the other, either alone or jointly with any stockholder other than his co-trustee. In Waterman v. Alden?'^ Wliere there were co-trustees, it was held: It is not necessary in the transaction of ordinary business that all be present and participate in every act. But in the case of a public trust, cre- ated for a particular charitable purpose, as for school, hos- pital, almshouse, church or other institution, where there are several trustees, the act of a majority is held to be the act of the whole number; but the act of the majority must be strictly within the sphere of their power and duty.^^ And this power of the majority may grow out of the administration of a chari- table trust, where the court appoints the trustees, and they ad- minister the trust with the assistance of the court to carry out the intention of the donor.^^ 314. Trustees cannot delegate their powers or duties, but may employ attorneys and agents. If a person takes upon himself the management of property, he has no right to im- pose that duty on others, and if he does he will be responsible to the cestui que trust, to whom he owes the duty.^*^ Whoever takes property under a will, takes it in the character impressed 34 — 1 Perry on Trusts, 5th ed., - 38 — 1 Perry on Trusts, section Sec. 411. 413. 35—93 111. App. 538. 39—1 Perry on Trusts, Sees. 36—90 III. App. 315. 731, 733, 734, 735. 37—42 111. App. 294. 40—1 Perry on Trusts, section 402. 250 THE LAW OF ESTATES. upon it by the testator."* ^ An executor cannot delegate to an- other the execution of a power of sale committed to him by the will in trust and confidence.^^ ^ power of sale given to two executors both of whom qualify and take upon themselves the burden of the execution of the will, cannot be delegated by one to the other ; and an agreement for a sale entered into by one co- executor for himself and the other is not valid, and cannot be specifically enforced.^^ If a trust is of a discretionary nature, the trustee will be responsible for all the mischievous consequences of the delegation, and the exercise of the discretion will be absolutely void in the substitute.^'* The general doctrine, with its limitations, is well stated by Perry in his work on Trusts."*^ That author says: "If an agent is employed by a trustee, and thus comes into possession of the property, he will be accountable to his employer, and will not be responsible as a constructive trustee. But if an agent should act fraudulently or coUusively, he might be made a trustee by construction, and as such accountable to the cestui que trust. "■*° *'If an agent secures any benefit from the breach "of the trust, he will be responsible for the property to the party entitled to the beneficial interest. "**''' "If they mix themselves up with a breach of trust, and by an abuse of their powers as simple agents obtain possession of the trust property, the cestui que trust may pro- ceed against them as trustees de son tort, or constructive trus- tees. ' '48 The rule with its limitations, as stated by these authors, is fully recognized by the court in Davis v. Harhness.^^ "So it is 41— Burbach v. Burbach, 217 111. 589; Wilson v. Mason, 158 111. 313; 547. Lehman v. Rothbarth, 111 111. 189- 42 — 2 Williams on Executors, 195. Am. notes, page 133, marg. page 45 — 1 Perry on Trusts, Sec. 246. 815; 7 Am. & Eng. Ency. of Law, 46—1 Perry on Trusts, Sec. 247. pp. 300, 301, and cases cited in 47 — 2 Perry on Trusts, Sees. 813, notes. 907. 43 — Sebastian v. Johnson, 78 111. 48 — Lewin on Trusts, 7th Eng. 282; Wilson v. Mason, 158 111. 313. ed. 175, 436, 550. 44— Singleton v. Scctt, 11 Iowa 49—1 Gilm. (111.) 173. TRUSTS AND TRUSTEES— CONTINUED. 251 held in a contract between a firm and an attorney, where the lat- ter was made trustee for the prosecution of certain litigation and distribution of proceeds, which directed him first to pay the costs and expenses of the litigation. One who loaned such attorney several sums of money to cover such expenses, on the latter 's express promise to pay the same, with 6 per cent interest from the date of advancement, was held to be entitled to a decree against such attorney conjointly with the members of such firm for the sums advanced with interest from the date of advancement.^*^ It will thus be seen, the trustee acting at times through attorney or agent, and giving instructions to the same how to act, cannot be said to be a delegation of the trust.^^i 315. A trustee accepting the trust cannot renounce the same to free himself from liability. He must seek his dis- charge by accounting, either to the cestui que trust, to the court appointing him, or take the chance of being called to account by any court of equity having jurisdiction. A trustee may be appointed by will, deed, or other w-ays, without the order of any court and without suit pending, and his powers as a rule, are governed by the instrument creating the trust, and not by a decree of court. Property in his possession as trustee is not in custodia legis, as in the case of receivers or other officers of the law or of the courts. But if the trustee acting under a will or deed or without the order of any court has been derelict in his duty, has failed to keep proper books of account, or has without sufficient warrant depleted the trust fund, he can be required to account, ajid can be removed if necessary by any court of equity- obtaining jurisdiction on the complaint of interested parties.^- A trustee having accepted a trust, can not renounce it, he is bound to discharge its duties, and he cannot free himself from liability by mere renuncia- tion. He must be discharged by a court of equity after he 50— McGillis V. Hogan, 190 111. 52— Nevitt v. Woodburn, 175 111. 176. 376; Same v. Same, 190 111. 289. 51 — 1 Perry on Trusts, 5th ed., Sec. 409. 252 THE LAW OF ESTATES. has accounted for the trust property or the trust funds, or by a special power in the instrument of trust, or by the consent of all parties interested in the estate, if they are in sui juris. If all parties are not sui juris, recourse must be had to a court of equity in the absence of any provisions in the instrument of trust.°2 Even though a trustee give a bond for the due execu- tion of the trust, and in a suit upon the bond is obliged to pay the full amount, he is not discharged from the trust, nor does the trust property properly vest in him beneficially. He is still a trus- tee and must account for the trust property and all the income and profits to the cestui que trust, or to the court from which he received his appointment, or to a court of equity in a proper proceeding in which an accounting with the trustee is sought. ^^ Though a trustee may be discharged by transfer or settlement, such transfer or paper of settlement, may be attacked and impeached on the ground of fraud, accident or mistake.^^ In the latter case it is held : A release by a cestui que trust will not be binding unless he is first made fully acquainted with his rights, and the nature and full extent of the liabilities of the trustee. Any concealment, misrepresentations, or other fraudu- lent conduct, on the part of the trustee, will vitiate such a re- lease.^^ 316. Power of trustees coupled with interest. Whoever takes property under a will takes it in the character impressed upon it by the testator. Thus, a trustee authorized to sell lands and to hold and possess them for the purposes of the trust has a power coupled with an interest; and where the will gives power to sell and convey, execute deed and invest the proceeds, and to control and manage the estate devised, and use it for the support 53—1 Perry on Trusts, 5th ed.,- 55—2 Perry on Trusts, Sees. 922, Sec. 401; Switzer v. Skiles, 3 Gill' 923; Casey v. Casey, 14 111. 112; (111.) 529; Nevitt v. Woodburn, Dennis v. McCagg, 32 111. 429; 190 111. 289. Uhlich v. Muhlke, 51 111. 499; 54 — 1 Perry on Trusts, Sees. Ward v. Armstrong, 84 111. 151; 209, 401; Fisk v. Seeberger, 154 Jones v. Lloyd, 117 111. 597. 111. 30; White v. Sherman, 168 111. 56— Same v. Same, 117 111. 597. 611. TRUSTS AND TRUSTEES— CONTINUED. 253 and education of the children of the testator, as the trustee shall deem best ; in such case the trustee may sell, either by public auction or by private contract, as may be most advantageous to the trust estate. He may convey in satisfaction of a debt, or sell for cash and pay the debt. And under a state of facts, consistent with the acts of a trustee, and of the quantity of property belong- ing to an estate, of all of which the trustee had full knowledge, it will be presumed that what was done by the trustee clothed with such power and interest, was for the best interests of the estate, and made the remainder of the estate more valuable.^''' Where trustees were authorized by the will to care for, rent and manage the real estate, they have power under the direction of a court of equity to make a 99 year lease of certain of the real estate, where such course is consented to by all adult parties in interest, and is clearly for the best interests of the estate and the beneficiaries.^^ This case follows Marsh v. Reed, where it was held,^^ a court of equity has jurisdiction of a bill to authorize a trustee under a will to execute a lease of the estate for a longer period than that authorized by the testator. The testator granting the trustee power to lease the property in question "provided, that no lease be for a longer term than 10 years. ' ' Upon the show- ing made by the bill it appeared the trustee could lease the prop- erty for a period of 99 years at $65,000 a year and charges, and that all the adult beneficiaries were desirous that the application to the court for power to make such lease be granted. A decree was therefore entered granting power to trustee to make such lease; the Supreme Court holding, that a decree granting such application was proper. The equitable principle applied in this class of cases arises, where the directions of a donor as to the manner of executing the trust are found to be defective and un- wise, it is held as ill Curtis v. Brown :^^ "Exigencies often arise not contemplated by the party creating the 57— White v. Glover, 59 111. 459; 58— Denegre v. Walker, 214 111. Taylor v. Walson, 177 111. 439; Oil- 113. ver V. Oliver, 179 111. 9; Casey v. 59—184 111. 263. Canovan, 93 111. App. 538. 254 THE LAW OF ESTATES. trust, and which, had they been anticipated, would undoubt- edly have been provided for. ' ' Where the aid of a court of chan- cery must be invoked to grant relief, imperatively required, the court must, as far as may be, occupy the place of the party cre- ating the trust, and do with the fund what he would have dic- tated had he anticipated the emergency, "^i Equity has power, in a proper case, to authorize a conversion of trust property contrary to the provisions of the will creating the trust. Where a will requests a majority of the testator's children to sign a written request to the trustee to sell land, neither the trustee nor the party to whom the sale was made, though they are both children of the testator, should be counted in determining whether a majority of the children signed. A sale by a trustee in order to be valid and binding must be conducted fair to all beneficiaries.*^^ 317. The trustee's title to land. Where the purpose of the trust requires the trustee to take a fee, as where he is required to convey a fee, the fee passes.^^ Where several trusts are created in the same instrument some of which will be executed by the Statute of Uses, and others will not, the trustee takes the legal title.*^^ Where property is devised to trustees with powder to pay over the interest and principal to the cestui que trust, his wife and children, or any of them, at the trustee's discretion, so that the family may at all times have a comfortable support, the trustees take the fee in trust during the continuance of the trust.^^ A trustee empowered to convey land to the objects of the settlor's boimty, acquires whatever estate, even to a fee sim- ple, is needed to enable him to accomplish the purpose of the trust. ^"^ Or when he has active duties to perform 60—29 111. 201-230. English, 106 111. 425; Ebey v. Ad- 61— Garvin v. Curtis, 171 111. ams, 135 III. 80; McDale v. Shep- 640; Johns v. Johns, 172 111. 472; ardson, 53 111. App. 513. Johnson v. Buck, 220 111. 226. 64— Silverman v. Kristufek, 162 62— Fredrick v. Fredrick, 219 111. 222. 111. 568; Johnson v. Buck, 220 111. 6.5— King v. King, 168 111. 273. 226. 66 — Lawrence v. Lawrence, 181 63— Preacher's Aid Society v. 111. 248; Kann Moll v. Gardner, TRUSTS AND TRUSTEES— CONTINUED. 255 he takes the legal estate. ^'^ If a trustee is required to collect and pay over rents for an indefinite period, he will take the fee; so he takes the fee where he is directed to pay debts or legacies or a specific sum in gross. And it makes no dift'ereuce that upon a final administration the personal estate may prove sufficient to liquidate all demands; it is enough that the requirements of the will are absolute and the executor con- ceivably might have to resort to the land for his own protection. Where there are no restrictive words, a power to sell is to be referred to the trustee's interest or estate in the land, and his estate will be construed as co-extensive with his duty to sell, should it become necessary, which would require a fee. The trus- tee will not take a fee where the exigencies of the trust may be satisfied with a less estate.^^ "If a trustee is required to grant a fee, the fee must be conferred upon him.<^^ Where the trustee is required to convey the title to the beneficiaries on the happen- ing of a certain event, the trust is not a passive or dry trust and the Statute of Uses does not operate to vest the title in the usee."*^ The legal title involved rested in the trustee for certain pur- poses and upon the death of the beneficiary the title did not remain in abeyance.''^^ Courts of equity may be vested with power to appoint a successor to a trustee in whom title to land may rest, but such title cannot descend to and vest in a court of equity. The title held by the trustee in this instance, upon her death passed to her legal heirs, subject to the trust. ^^ Such heirs were necessary parties to any proceeding instituted for the purpose of divesting them of such title."^^ 214 111. 248; Chicago Terminal Preacher's Aid Society v. England, Transfer Co. v. Winslow, 216 111. 106 111. 425. 166; Burbach v. Burbach, 217 111. 70— Kirkland v. Cox, 94 111. 400; 547. Preacher's Aid Society v. England, 67— Hale v. Hale, 146 111. 227. 106 111. 425. 68— West V. Fitz, 109 111. 425; 71— Preacher's Aid Society v. Lawrence v. Lawrence, 181 111. England, 106 111. 425. 248-251-252. 72—27 Am. & Eng. Ency. of 69 — Kirkland v. Cox, 94 111. 400; Law, 92, and cases cited in notes. 73— Sidles V. Switzer, 11 111. 533. 256 THE LAW OF ESTATES. 318. Conveyance from trustees or their heirs necessary to revest title. Where the legal title is vested in trustees, nothing short of a re-conveyance can revest it in the grantor ; it does not revest by operation of law upon accomplishment of the purpose of the trust. '^^ A trustee holding the title to land may convey to a third person at the request of the cestui que trust, and thus pass title.'^^ 319. Trustee must defend and protect his title. A trustee must defend and protect the title he holds ; also he must perform all the duties of a legal holder of the legal estate.'^^ Courts will imply a power or trust and put itself in the place of a trustee, for the party beneficially interested, or the cestui que trust.''^''' It is the duty of the trustee to pay taxes. If discretionary under trust instrument, the court will construe it into a duty to be executed; and the income of an estate must as a general rule bear the expense of administering it.'^^ 320. The same rules applied in equitable and legal estates. It is a fundamental principle that equitable estates are governed by the same rules as legal estates, otherwise inextricable confu- sion would ensue. "^ In the cases cited and those following, the doctrine being, courts of equity will not permit limitations of future eiquitable interests to transcend those of legal interests, which are upheld as executory devises and shifting and spring- ing uses at law.^*^ 74— Vallett v. Bennett, 69 111. 76—1 Perry on Trusts, Sees. 326, 632; Kirkland v. Cox, 94 111. 400; 328, 473-476. Hardin v. Osborne, 60 111. 93; Har- 77 — 1 Perry on Trusts, Sec. 331; ris V. Connell, 80 111. 54; McNabb 2 Perry on Trusts, Sec. 527. V. Young, 81 111. 11; Hobble v. 78— Butterbaugh's Appeal, 98 Ogden, 178 111. 357; Rogers v. Tu- Pa. St. 351. ley, 144 111. 652. 79—1 Perry on Trusts, 357, 377, 75— Rogers v. Tuley, 144 111. 382, 383; Post v. Rohrbach, 142 652; Taylor v. Walson, 177 111. 111. 600; Hart v. Seymour, 147 111. 439; Fisher v. Fairbanks, 188 111. 598. 187. 80— Howe v. Hodge, 152 111. 252; Biglow v. Cady, 171 111. 229. TRUSTS AND TRUSTEES— CONTINUED. 257 321. Trustee cannot create a lien on assets he holds. Where a trustee is called upon to account, he has in general, no implied power to charge or create a lien on assets in his hands.^^ And as a general rule he cannot set off an independent ordinary debt due from the beneficiary, the debt and the trust liability having to do with the trustee in different rights or capacities; there is no mutuality between the trustee and the beneficiary.^^ And imperfect information pertaining to the trust will be re- garded as equivalent to concealment.^" 322. Reasonable care and diligence exacted of trustee. Speaking generally, the law exacts from a trustee, a careful, consistent, legal and honorable administration of the trust and all matters relating and pertaining thereto. The courts seek the highest and best ability in the person or corporation adminis- tering a trust estate. Courts also exact the clearest perception of the duties imposed and the strictest accounting of the trust property and funds. This is particularly true as to executors, administrators, guardians of infants and lunatics and conserva- tors of the insane. Indeed, these fundamental relations, duties and responsibilities, exacted from trustees, are for the safety of personal and property rights and cannot be disregarded with impunity ; they are the foundation upon which jurisprudence in this regard must rest. These general principles thus announced need no citation of authorities to uphold them, but such will ap- pear as the law is applied to the duties pertaining to trusts and trustees. A trustee is bound to discharge the duties of his trust to the best of his skill and ability, with such care and diligence as men fit to be entrusted with matters such as those of the trust may fairly be expected to exercise in their own business of equal importance.^* 81— Chicago Fire Place Co. v. 83— White v. Sherman, 168 111, Tait, 58 111. App. 293. 606; Gibbons v. Hoag, 95 111. 45; 82 — Knowles v. Goodrich, 60 111. Henry County v. Drainage Co., 52 App. 506; Nevitt v. Woodburn, 190 111. 454. 111. 283; Mannhardt v. Illinois 84 — Waterman v. Alden, 144 111. Staats Zeitung Co., 90 111. App. 90; Same v. Same, 42 111. App. 315. 17 258 THE LAW OF ESTATES. 323. The trustee must account for all trust property coming to his hands. This is the general rule whether the trustee is appointed by court, created by operation of law, by voluntary assignments, by deeds of trust or will or other instrument. In all cases the judiciary must account for all the trust property that comes to his hands, whether by purchase or otherwise, and for all profits which may come to him by dealing with such trust property, for all bonuses or gratuities given to him by strangers for contracts made with him in relation to the trust property. But equity goes to the extent of watching over these defined re- lations of parties; it scrutinizes the undefined relations of friendly habits of intercourse, personal reliance, and confidential advice; and if advantage is taken of such relations to obtain an unfair bargain, equity will set it aside or convert the offending party into a trustee. Equity will not tolerate extortion, nor money paid under duress or compulsion ; nor suffer a settlement to stand that is not fair and equitable between the trustee and the cestui que trust.^^ In Spades v. Barrett,^^ it is held: All promises made and contracts entered into, where there is duress of person may be avoided. Liberty and life are justly dear to all men, and so is the exclusive right to possess, dis- pose of and protect from destruction our property. Thus, if a party has in his possession goods or other property, belong- ing to another, and refuses to deliver such property to the other, unless the latter pays him a sum of money which he has no right to receive, and, in order to obtain possession of his property, he pays that sum, the money so paid, is a payment made by com- pulsion and may be recovered back.^'^ So an action will lie to recover money wrongfully exacted by a corporation as a con- dition permitting a transfer of stock.^^ And where there was 294; Perrin v. Lepper, 72 Mich. 86—57 111. 289. 454. 87 — Shaw v. Woodcock, 7 B. & 85—1 Perry on Trusts, Sees. 209, C. 73; Ashley v. Reynolds, 2 210; Spaids v. Barrett, 57 111. 289; Strange, 916; Harmony v. Bing- Lehman v. Rothbarth, 111 III. 185; ham, 12 N. Y. 109-116. Same v. Same, 159 111. 270. 88- Cobb v. Charter, 32 Conn. 364-366. TRUSTS AND TRUSTEES— CONTINUED. 259 a settlement between parties and receipt passed in full, the ref- eree found that the plaintiff forced the defendant into the set- tlement against his will and accord by taking advantage of his pecuniary necessities. In Vyne v. Glen,^'-^ the court said: "It Is idle to say that such a settlement was free and voluntary, and that it should be sustained." The rule is laid down by Story in his Equity Jurisprudence, section 523: "But if there has been any mistake, or omission, or accident, or fraud, or undue advantage, by which the account stated is in truth vitiated, and the balance is incorrectly fixed, a court of equity will not suffer it to be conclusive upon the parties, but will allow it to be opened and re-examined. In some cases of gross fraud, or gross mistake, or undue advantage or imposition, made palpable to the court, it will direct the whole account to be opened and taken de novo."^*^ A settlement pressed upon wards, about the time of their becoming of age, by one standing in loco parentis, and claiming to represent their mother and law- ful guardian, from which the latter is forcibly excluded, should not be sustained, except so far as it is just and fair to them. If based chiefly on improper charges against them, they should not be concluded by it.^^ 324. Where trustee is guilty of fraud or wilful default. An abuse of trust can confer no right on him who abuses it, or any one claiming in privity mth him.^^ In Butler v. Butler^^ the evidence of record shows the trust funds were invested by the trustee, in the opening and operating of a coal mine; with- out authority in the trustee so to do, given by the instrument under which the trust was originally created. The court holding such investment to be a conversion of the trust fund without authority, amounting to an abuse of the trust. On page 179 of the opinion, it is said: "Appellant is chargeable 89—41 Mich. 112. 111. 185; Same v. Same, 159 111. 90— Story's Eq. Jur., Sees. 523, 270. 848; Spalds v. Barrett, 57 111. 289; 92— Bush v. Blanchard, 19 111. Pomeroy's Eq. Jur., Sec. 948. 31; Bret v. Yeaton, 101 111. 242. 91— Lehman v. Rothbarth, 111 93—164 111. 171. 260 THE LAW OF ESTATES. with notice of the trust and of the rights, interest and equities of appellees in the land and mining property, and it is the set- tled doctrine of courts of chancery that cestui que trusts may pursue the proceeds of the trust property and charge with the original trust any property in which they may be invested, as against all who have actual or presumptive notice of the trust; and the cestui que trust may elect to follow the funds into the new investment, or to hold the trustee personally liable.^* 325. Tracing and restoring trust fund. In Waodhouse v. Crandall, the court cites the following rule from Pomeroy's Equity Jurisprudence.^^ "If the trust fimd can be traced and identified, the cest^(i que trust has a right to it and to the aid of a court of equity to reach it and compel its trans- fer to him. His right will not be affected by any change in the form of the trust property by the trustee, provided that the fund can be identified and is not so mixed up with other moneys or property that it can no longer be specifically separated. ' ' The same author concerning this rule says: "This universal rule forms the protection and safeguard of the rights of the bene- ficiaries in all kinds of trusts. It enables them to follow trust property, — lands, chattels, funds or securities, and even of money, — as long as it can be identified, into the hands of all sub- sequent holders who are not in the position of bona fide pur- chasers for value and without notice. It furnishes all those dis- tinctively equitable remedies which are so much more efficient in securing the beneficiary's rights than the mere pecuniary re- coveries of the law. "^^ And it makes no difference on the question of the identity that the fund was mingled with other 94 — 1 Perry on Trusts, Sees. 95 — 197 111. 104; Pomeroy's Eq. 470-471; 2 Story's Eq. Jur., Sec. Jur., Sees. 1048, 1058. 1262; 11 Am. & Eng. Ency. of 96— Union Nat'l Bk. v. Goetz, Law, 837, note 2; Sholty v. Shol- 138 111. 127; Wetherell v. O'Brien, ty, 140 111. 81; White v. Sherman, 140 111. 146; see also, where same 168 111. 603; Leonard v. Specht, rule was applied, School Trustees 180 111. 208; Reed, Murdock & Co, v. Kirwln, 25 111. 62; Kirby v. v. Sheffy, 99 111. App. 189. Wilson, 98 111. 240. TRUSTS AND TRUSTEES— CONTINUED. 261 moneys of the bank; and where it was held that the iden- tity of the fund is not destroyed and lost merely by being mingled with other moneys of the trustee. In Woodliouse v. Crandall,^'^ it is said: Equity lays a charge, in such a case, on the funds into which the trust money is traced, and not on the general estate of the trustee. The only question here is what is a sufficient identification and the rule is, that if it can be shown the money is in a specified place, equity will take out of that place enough money to satisfy the trust. In this case, we think the trust fund was traced and identified by legitimate evidence and rules of law for ascertaining its identity. 326. Duty of trustee to collect assets of trust estate. Exec- utors and trustees must promptly collect, especially when the debt is on personal liability only, though the debtor is reputed wealthy, it is no excuse for delay ; and mere solicitation without suit for payment is insufficient.^^ Trustees in this regard are held to the same diligence they should exercise as to their own affairs.^^ In the case of Waterman v. Alden,^ it was estab- lished by the evidence that the trustees prior to the bill filed against them for accounting, were guilty of some negligence, in and about the management of the trust property. First, they wholly failed to keep proper account of the trust funds and their dealings with the same. Second, one of the trustees gave little or no attention to the business, being much of the time ab- sent from the state. Third, general negligence was shown in failing to promptly collect or secure claims due the estate. Among the assets of the estate were certain notes, and a failure to use proper diligence to collect these notes or the whole amount thereof, is the basis upon which a lack of diligence on the part 97—197 111. 104— page 116. v. Norcott, 13 Beav. 336; Whitney 98 — Lawson v. Copeland, 2 B. v. Peddicord, 63 111. 250; Water- C. C. 156; Bailey v. Gould, 4 Y. & man v. Alden, 144 111. 90. C. 221; Lewin on Trusts, 290; 99— Lewin on Trusts, 294, 307; Schouler on Executors, 267; Byrne Perry on Trusts, 266. 1—144 111. 90. 262 THE LAW OP ESTATES. of the trustees was claimed. The court held in that case : When trustees to whom a testator devises his property in trust, con- sisting of notes, among other things, neglects to take proper steps to collect or secure the same, which might have been collected or secured by proper care and diligence, whereby the debt evidenced by said notes is lost, the trustees will be chargeable with the amount of the loss from their neglect of duty. The fact that the relation existing between the testator or payee of the notes and their maker may have been such, that the former would if liv- ing, rather lose the debt than press its connection, will furnish no excuse for the trustees to neglect or fail to use all reasonable diligence in the matter. The executors and the trustees being the same persons, it is impossible that there should be an act of fraud, or breach of duty by the executors, which is not con- sented to and acquiesced in by the trustees. Suppose that other persons had been the executors, and they had been guilty of the conduct charged in this bill, causing the loss here complained of, and these trustees, with full knowledge of that misconduct, had not only consented, but themselves contributed thereto, would there have been any doubt as to the power of a court of chancery to charge the trustees, regardless of the liability of the execu- tors, in the settlement of the estate in the County Court? Noth- ing which may hereafter be done in the settlement of the estate in the County Court can affect this question, and we are unable to see why these complainants should be sent to that court for the settlement of their rights. 327. Trustee must keep clear and accurate accaunts. A trustee or executor is bound to keep clear, distinct and accurate accounts. If he does not, all presumptions are against him, and all obscurities and doubts are to be taken adversely to him. If he enters these accounts in his private books, he is bound to pro- duce the books, although such books contain his private accounts ; and even if he enters the accounts of the trust in the books of the firm of which he is a partner, the books must be produced. The cestui que trust may enforce these rights against all persons act- ing for, or claiming by, through, or under the trustee with no- TRUSTS AND TRUSTEES— CONTINUED. 263 tiee, or taking without value.^" The obligation of the trustee to account is in no way affected by his disposition of the money; the obligation results from the receipt of the trust funds.^** It is a permanent dutj^ of trustees to have their accounts ready and open for inspection. Courts will not tolerate an omission on their part to keep accounts.^ The right to accounting is inci- dental to the trust relation.^ The burden of accounting for the assets of a trust estate is also upon the trustee.^ A settlement of account means a general settlement of every pending trans- action ; a settlement of a portion af an account is not in this sense a settled account.^ 328. Where trustee acts in good faith. As has been stated a trustee is bound to discharge the duties of his trust to the best of his skill and ability, and with such care and diligence as men fit to be intrusted with matters such as those of the trust, may fairly be expected to exercise in their own business of equal im- portance.^ And where the trustee has acted in good faith, he will be held to account in equity only for what he has actually received, not for what he might have received."^ Courts of equity having power to do equity, generally allow the trustee, the actual money paid out in good faith for the preservation of the trust estate.* 329. Trustee cannot purchase at his own sale. If trustee conveys property to himself, any one or more of the cestui que la — 2 Perry on Trusts, 5th ed., 123; Diversey v. Jolmson, 93 111. 821; Chicago Mutual Indemnity 563. Association v. Hunt, 127 111. 257. 5— Brula v. Setz, 5 111. App. 116; lb — National Park Bank v. Diversey v. Johnson, 93 111. 563. Halle, 41 111. App. 19. 6— Waterman v. Alden, 144 111. 2— Uhlin on Trusts, 277; Tif- 90; Lewin on Trusts, 294, 307; fany & Bullard on Trusts, 704, Perry on Trusts, 266. 705, 706; Perry on Trusts, 911. 7— Van Buskirk v. Van Buskirk, 3 — Cochran v. Adams, 50 Mich. 148 111. 9; 2 Pomeroy's Eq. Jur. 16; Clark v. Pierce, 52 Mich. 157; 1058, and notes; Hill on Trustees, Darrah v. Boyce, 62 Mich. 480; marg. p. 523. Morrison v. Mayer, 63 Mich. 238. 8 — Baker v. Baker, 14 Wis. 131; 4 — Lehman v. Rothbarth, 159 111. Cook v. Gilmore, 133 111. 189. 270; Brula v. Setz, 5 111. App. 116, 264 THE LAW OF ESTATES. trust, may avoid the deed. The general rule being, "that the trustee shall not take beneficially by gift or purchase from the cestui que trust ; even though the supposed trustee and purchaser is a mere intermeddler, and not a regularly recognized trustee. The question is not whether there is fraud, in fact, the law stamps the purchase by the trustee as fraudulent per se; and to remove all temptation to collusion and prevent the necessity of intricate inquiries, in which evil would often escape detection, and the cost of which would be great, the law looks only to the fact of the relation and purchase.^ In equity a trustee cannot himself become the purchaser, either directly or indirectly, of property intrusted to him to sell; if he attempts to purchase, the sale, however fair or however covered, cannot stand.^° Nor can a company of which the trustee is a member purchase ;^^ and it makes no difference in equity whether the purchase is in the name of the trustee or in the name of another for his use.i2 Nor whether the sale is made with or without a decree of court.13 ]s[or whether any fraud is in fact intended. But at law, to invalidate a sale made by a person acting in a fiduciary capacity on the ground that he became a purchaser, it must appear that the sale was fraudulent.^^ There are exceptional cases where a trustee might be permitted to use the trust funds and take title from an outstanding holder of title, such as a tax title creating a cloud on the title held by the trustee, but in 9 — 1 Perry on Trusts, 5th ed., Mutual Union Loan Association, Sec. 195. 146 111. 283; Butler Paper Co. v. 10— Robbins v. Butler, 24 111. Robbins, 151 111. 588; White v. 387; Lockwood v. Mills, 39 111. Sherman, 168 111. 589; Penn v. 602; Kruse v. Steffens, 47 111. 112; Folger, 182 111. 76. Phares v. Barbour, 49 111. 370; 11— Robbins v. Butler, 24 111. Ogden V. Larrabee, 57 111. 389; 387. Nelson v. Hayner, 66 111. 487; 12— Kruse v. Steffens, 47 111. Harts V. Brown, 77 111. 226; Hig- 112. gins V. Curtiss, 82 111. 28; Borders 13 — Ogden v. Larrabee, 57 111. V. Murphy, 125 111. 577; Russell v. 577; Borders v. Murphy, 125 111. Peyton, 4 111. App. 473; Tyler v. 577. Sanborn, 128 111. 136; Ligger v. 14— Lockwood v. Mills, 39 III. 602. TRUSTS AND TRUSTEES— CONTINUED. 265 such case his purchase and every thing relating to the purchase should be disclosed to the cestni que trust.^^ Or he might pur- chase at a foreclosure sale where he holds the mortgage; but in such case would be trustee of property purchased.^ ^ 330. Trustee cannot malie profit from trust property. Whatever use the trustee may make of trust property, if profit is derived, the law presumes such profit is for the benefit of the cestui que trust; and will require the trustee to render account thereof. He must account to estate for commissions received. And it is not essential, that the estate has suffered a loss from what he has done ; it is sufficient that the trustee has gained a profit.i^ The profits to a trustee from insurance money col- lected on his principal's property, for which he refused to ac- count will be charged to him in accounting by the court.^^ 331. What investments of the trust funds should be made. The law does not give to trustees the same fi-eedom of choice in investments which may be exercised by prudent business men in their own affairs. It is the settled rule in equity, in the absence of express directions in the instrument creating the trust, or of statutory permission, that trustees can not invest trust property upon any mere personal security, nor upon the stocks, bonds, or other securities of private business corporations. In England, the rule of equity is, that the trustee should invest trust funds, in real estate or public governmental British securities and can only escape risk and liability by investing in real estate securities, or in the public governmental securities of the British government. In the United States, while the rules are certainly not so stringent and invariable as in England, and while different 15 — ^Ward v. Armstrong, 84 111. 309; 27 Am. & Eng. Ency. of Law, 151, and cases cited in opinion. 187, 194, 196, and cases cited in 16 — Ogden v. Larrabee, 57 111. notes; 1 Perry on Trusts, Sec. 209; 577; Allen v. Jackson, 122 111. 2 Pomeroy's Eq. Jur., Sec, 1075; 567. Sholty v. Sholty, 140 111. 81; Glov- 17— White V. Sherman, 168 111. er v. Cayton, 145 111. 92; Hurd v. 611; Fish v. Seeberger, 154 111. Goodrich, 59 111. 450; Asay v. 30. Allen, 124 111. 391. 18— Hoyt V. Shepherd, 70 111. 266 THE LAW OF ESTATES. regulations may prevail to some extent in different states, based partly upon statutory legislation, and partly upon the policy of encouraging local enterprises, the same fundamental principle of requiring permanent investments in real estate or government securities is generally recognized by the courts ; at least all specu- lative risks are forbidden.^^ Thus, the investment in speculative railroad stocks are not within the limit of the correct rule of equity.2'^ A trustee has no right to convert money into land, 19 — Pomeroy's Eq. Jur., Sec. 1070, et seq., and notes; Perry on Trusts, Sees. 452, 454, 456, 459, and cases cited in notes; Adair V. Bremner, 74 N. Y. 539; King v. Talbot, 40 N. Y. 76; Simmons v. Oliver, 74 Wis. 633; Story's Eq. Jur., Sees. 1273, 1278, and cases cited in notes; Sholty v. Sholty, 140 111. 81; Butler v. Butler, 164 111. 171; White v. Sherman, 168 111. 589; Penn v. Folger, 182 111. 103. 20— White v. Sherman, 168 111. 603, the court gives in its opinion the following well settled rules: (1) When a trustee has in fact converted trust funds to his own use or without authority has in- vested the trust funds in any other property into which such trust funds can be distinctly traced, the cestui que trust has an election either to follow the same into the new investment, or to hold the trustee personally liable for the breach of trust. Support- ing this doctrine: 2 Story's Eq. Jur., Sees. 1262, 1263; Bret v. Yea- ton. 101 111. 242. (2) And where the trustee invests money in his individual name, he commits a breach of trust, which subjects him to the same liability as if there had been a wilful conver- sion to his own use. Morris v. Wallace, 3 Pa. St. 319; Stanley's Appeal, 8 id. 431; McAlister v. Commonweath, 30 id. 536; 2 Pomeroy's Eq. Jur., Sec. 1079, and cases cited in notes; Gilbert v. Welsch, 75 Ind. 557; Naltner v. Dolan, 108 id. 500; De Jarnette v. De Jarnette, 41 Ala. 708; 27 Am. & Eng. Ency. of Law, 193, 196, and cases cited. (3) The trustee may not deposit trust funds in his own name, for if he do so, he will be held to a strict accountability for the conversion. In such case a strict accounting will be exacted from the trustee. 27 Am. & Eng. Ency. of Law, pp. 160, 163, and case cited in notes; McDonnell v. Harding, 7 Sim. 177; Williams v. Williams, 55 Wis. 300; Massey v. Banner, 1 Jacob & W. 241; Jen- kins V. Walters, 8 G. & J. 218; Brown v. Dunham, 11 Gray 42; Summers v. Reynolds, 95 N. C. 404; Syme v. Badger, 92 id. 706. (4) A trustee must act with dis- cretion — speculative risks by him being prohibited. He cannot in- vest in stocks or bonds of private corporations; the proper method is for the trustee to seek direc- tions of court as to investment of trust funds, so that he may be protected by the order of the TRUSTS AND TRUSTEES— CONTINUED. 267 or land into money at his pleasure, when not authorized ex- pressly or impliedly so to do, in the instrument creating the trust.2^ And in the absence of express authority by statute, or the instrument creating the trust, he cannot invest the trust funds in stocks, bonds or other securities of private corpora- tions.22 A trustee appointed by court must select such securi- ties for the investment of the funds of his trust as the court ap- pointing him will approve.23 That the investment of the trust funds in the individual name of the trustee is a breach of the trust, which subjects the trustee to the same liability as a wilful conversion.24 In Penn v. Folger, it is held,^^ the trustee can not, without being guilty of conversion of funds invest in pri- vate banking business. And it is held, even when the trustee has unlimited discretion in the investment of trust funds he can- not invest in securities not sanctioned by a court of equity.^^ 332. What considered improper investment of trust funds. Trustees in the absence of power and authority in the will or other instrument creating the trust must not invest the trust funds in private bank stock; or in any private corporation; nor employ trust funds in a private business or copartnership or in court. White v. Sherman, 168 111. al bank. In the absence of spe- 589, and cases cited in that opln- cific directions by the settlor a ion. trustee should invest trust funds 21 — Sholty V. Sholty, 140 111. in real estate or government se- 81. curities, or, if acting under the 22 — White v. Sherman, 168 111. direction of the court, in such se- 589. curities as it may approve, other- 28 — White v. Sherman, 168 111. M'ise he will not be protected 589. against loss. See also Hall v. Ir- 24— White v. Sherman, 168 111. v/in, 2 Gill (111.) 176; Nicoll v. 589; Penn v. Folger, 182 111. 103. Scott, 99 111. 529; Conklin v. Ed- In this case it is held, an admin- gerton's Adm'r, 21 Wend. 430; istrator with the will annexed who Perry on Trusts, 3d ed., Sec. 245; holds national ban"R stock in trust Morris v. Joseph, 1 W. Va. 256; is without authority, upon the sur- Piper v. Hoard, 107 N. Y. 73. render of the charter of the bank, 25 — 182 111. 103. to invest the trust funds in a 26 — Matlocks v. Modlton, 84 Me. banking partnership which con- 545; Simmons v. Oliver, 74 Wis. tinues the business of such nation- 633; Penn v, Folger, 182 111. 103. 268 THE LAW OP ESTATES. the payment of private or partnership debts.^' And where the other partners have knowledge of the nature of the funds at the time of such misappropriation, they are implicated in the breach of trust, and become themselves, at the election of the cestui que trust, his debtors; or even trustees of the fund, as having connived at the violation. -^ And where the trustee invests trust money in his individual name, he commits a breach of trust.^^ Or if he deposits the trust funds in his own name, he is regarded in equity as converting the trust funds to his own use.^o And in case of gross delinquency a court of equity has power to compound interest annually or at shorter periods, according to the delinquency of a trustee.^^ 333. Intermeddlers. A person may become a trustee by intermeddling with, or assuming the management of trust prop- erty without authority. Such persons are treated as and called trustees de son tort?'^ Sometimes administrators, with the will annexed, appointed by the court to succeed an executor with pow- ers defined by will, through mistake or otherwise, mix themselves up with trust property and undertake to perform acts that do not belong to the office of such administrator. When such do so, or intermeddle with trust property they are treated as trustees de son tort.^^ The doctrine laid down in Hall v. Irwin,^'^ has become firmly fixed and settled in this state. ''That executors may act in a double capacity: as executors, by virtue of their office, and as agents or trustees under a warrant of attorney, — in which lat- ter capacity, as in the case of a power given to sell land, if they act, the trust imposed upon them is of a special and confidential 27— Penn v. Polger, 182 111. 76. 31— Matthewson v. Davis, 191 28— Emmerson v. Durand, 54 111. 399; Hurd v. Goodrich, 59 111. Wis. Ill; Diirant v. Rogers, 87 450; Asay v. Allen, 124 111. 391. 111. 508; Renfrow v. Pearce. 68 111. 32_perry on Trusts, Sees. 245. 125; Penn v. Folger, 182 111. 76. 265, and cases cited. 29— Dennis v. McCagg, 32 111. 49, 33— Hall v. Irwin, 2 Gilm. (111.) 30— White v. Sherman, 168 111. 176; Nicoll v. Scott, 99 111. 529; 589; Hauk v. Van Ingen, 196 111. Penn v. Folger, 182 111. 76. 200. 34—2 Gilm. 176. TRUSTS AND TRUSTEES— CONTINUED. 269 character and cannot be delegated, and that it is only the powers and duties of the executor, as such, resulting from the nature of his office, which devolves upon an administrator with the will an- nexed ; and not authority as trustee, — with a power to sell land, — which is a personal trust or confidence reposed in the executor by the testator. Thus an administrator with the will annexed, would have no power to take upon himself the execution of a trust in the will, such as the sale and conveyance of land, for if he does so act, those acts relating to the trust duty will be de- clared invalid." It has always been questionable, whether a court of chancery has power by its decree to operate a trust vested in a person in confidence solely by the terms of a will. That is to say, whether a court of chancery, by its decree can grant a power legally correct to an administrator with the will annexed to carry out and perform a power wholly vested in another. The case of Penn v. Folger,^^ does not indicate the chancery court entering the decree passed upon, had such power; and it is fair to assume from that authority at least such court had not. That decision treats the person acting under the decree as a trus- tee de son tort. They say in substance, that such constructive trustees are subject to the same rules and remedies as other trus- tees. They cannot avoid liability, and must account for trust property with which they become mixed the same as though they were in fact trustees.^ "^ A trustee having disposed of real estate, in violation of the trust, and in pursuance of a conspiracy to defeat the remaindermen, the latter are entitled to have the fraudulent conveyance set aside in equity, and the real estate so conveyed by trustees partitioned.^'^ It is held, the trustee occu- pied the position of a trustee de son to^-t and equity will compel an accounting and set aside the fraudulent conveyancers 35—182 111. 76, and cases cited 37— Leonard v. Specht, 180 111. in opinion. 208. 36 — Larmon v. Knight, 140 111. 38 — Henderson v. Blackburn, 232; Gurn v. Richardson, 128 111. 104 111. 227; Griffin v. Griffin, 141 178; Davis v. Stambaugh, 163 111. 111. 373; Reed, Murdock & Co. v. 557. Sheffy, 99 111. App. 189. 270' THE LAW OF ESTATES. 334. Bonds of trustees. As a general rule a trustee ap- pointed by the court must give bond with sureties approved by the court and for an amount fixed by law or the order of the court appointing the trustee; and such bonds are usually given and approved when the office is accepted under the appointment. But when the sureties on the official bond of such officer are waived by the instrument under which he acts and no law interferes with the waiving of security in the instrument under which the trus- tee acts, his individual bond without sureties is usually filed un- der the order of court reciting the facts. If the trustee ap- pointed by the court be a corporation authorized by law to ad- minister estates, it gives bond in the manner required by the statute under which such corporation is created. Under the Statute of Illinois, bond is not required to be given by a corporation of this state when it is appointed and acts as trustee, etc.^^ Such corporation under the statute makes and keeps on deposit with the Auditor of the State, money, bonds, mortgages, etc., in the way of securities to meet its obligations.^^ The statute in question for the administration of trusts by trust companies is substantially as follows: Section 1 provides the manner of giving and the acknowledging of the bond. Sec- tion 15 provides, "That whenever any surety on the bond of any guardian, conservator of any idiot or insane person, or the trustee of any fund or property, appointed by any court, 39 — Pennsylvania Co. v. Bauerle, cited in each volume under sec- 143 111. 459. lions of statute noted; Kurd's R. 40 — See an Act to provide for S. of 111. 1905, p. 539, same sec- and regulate the administration tions and chapter. See also, Sec- of trusts by trust companies, ap- tions 1, 15, 16, and 17, Chapter proved June 15th, 1887; in force 103, entitled "Official Bonds." July 1st, 1887. The act being Starr & Curtis Annotated Stat- amended in part and approved utes of Illinois, with Jones & Ad- June 1st, 1889, in force July 1st, dington's Supplements thereto. 1889, as Sections 3 and 6, Chapter Vol. 2, pp. 2831, 2837, 2838; Vol. 32, entitled "Corporations." Starr 4, p. 907, and cases cited in each & Curtis Annotated Statutes of volume under sections of statute Illinois, with Jones & Addington's noted; Kurd's R. S. of 111. 1905, Supplements thereto. Vol. 1, p. same sections and chapter, pp. 1041; Vol. 4, p. 318, and cases 1417, 1419, 1420. TRUSTS AND TRUSTEES— CONTINUED. 271 or the heir, executor or administrator of such surety, desires to be released from further liability upon any such bond, he may petition the court in which said bond is filed for that pur- pose, and upon notice being given to such guardian, conservator or trustee, in such manner as the court may direct, the court shall compel such guardian, conservator or trustee, within a reasonable time, to be fixed by the court, to appear and settle his accounts, and to file in such court a new bond, with such penalty and se- curity as may be approved by the court, which being done, the surety may be discharged from all liability on such bond. ' ' Sec- tion 16: "If such guardian, conservator or trustee shall fail to comply with such order within the time required, the court shall order such person to be removed from his office or position, and appoint some other fit person guardian, conservator or trustee, in his stead, who is required to give bond as required by law." This section further provides, that the person thus appointed shall, in case his predecessor shall fail to settle and pay over to him the moneys and other property and effects in his hands, bring suit on his predecessor's bond, and when collected the sureties on such bond shall be discharged. Section 17 provides: "This act shall apply to all such bonds now in existence as well as to those heretofore entered into, but nothing herein contained shall be construed to release or in any way impair the liability of any surety on such bond until a new bond is filed. "^^ 335. Compensation of trustees. Under an act of the legis- lature in force July 1, 1891, Kurd's Statutes, 1905, Chapter 3, entitled ' ' Administration of Estates, ' ' section 1, p. 127, it is pro- vided: "That when a trustee or trustees shall hereafter act un- der any power or appointment given or created by any will, tes- tament or codicil, and in such will, testament or codicil, except in case of trusts for charitable, religious or educational purposes, shall be contained no provision respecting the compensation to 41 — See also case of Potter v. judicate under this statute the Peoples, 92 111. 430, where it is trustee must be appointed by a held, to give jurisdiction to ad- court of competent jurisdiction. 272 THE LAW OF ESTATES. be allowed or paid such trustee or trustees, a reasonable compen- sation may be charged and allowed, demanded and collected therefor." Before this enactment, the services of a trustee in this State in the absence of a provision for compensation, in the instrument creating the trust, were to be performed gratuitously and without regard to the advantages that might result from the superior care, skill and diligence in the management of the trust estate.'^^ In the case of Arnold v. Alden,^^ this statute was construed, and the court held, that the act of 1891, which gives compensation to trustees who "shall hereafter act" under any power of appointment by will extends to trustees who continue to act under trusts thus previously created. This, not- witlistanding the constitutional inhibition of the impairment of contract; there is no such obligation in the trust relation. The court also hold in this case, where it appears the trustee has re- ceived compensation as executor or administrator, does not neces- sarily deprive him of his right to compensation for services ren- dered as trustee provided the duties are separate. But this act of the legislature has not altered or changed the fundamental principles under which a trustee recovers fees or commissions for his services. The well settled and invariable rule being, "he must faithfully discharge his duties toward his principal or cestui que trust." Thus it is said in Lehman v. Eothharth:'^'^ "It is well settled that a trustee or agent can recover no fees or commissions for his services unless he has faithfully discharged his duties toward his principal or cestui que trust. "^^ "If he has neglected his duties, exercised bad faith in the conduct of his trust, or committed a breach of his obligation in any way, he forfeits his right to compensation. "^^ 42— Cook V. Gilmore, 133 111. 45— Hoyt v. Shepherd, 70 111. 139; Buckingham v. Morrison, 136 309; Brannon v. Strauss, 75 111. 111. 437. ■ 234. 43—173 111. 229. 46—27 Am. & Eng. Ency. of 44—159 111. 282. - Law, 187, and cases cited in note 3. CHAPTER XIV GIFTS CAUSA MORTIS AND INTER VIVOS Sec. 336. Gifts causa mortis. 337. Three principal requisites necessary to constitute. 338. Who may make gifts causa mortis. 339. Such a gift may be made to one in trust. 340. All the elements must center in the gift to be valid. Sec. 341. The effect of such a gift when established. 342. A gift inter vivos. 343. Sufficiency of delivery to con- stitute a valid gift, j 344. Right of dower, homestead and awards not affected. Sec. 336. Gifts causa mortis. Such a gift is defined "a gift of personal property, by a person who is in peril of death, upon condition that it shall presently belong to the donee, in case the owner shall die, but not otherwise. "^ Under the Roman law, such a gift was invalidated unless proved by five witnesses pres- ent at the time, every one of whom was required to be a Roman citizen, of full age, of good character, and not related to either donor or donee.^ The principles of the Roman law were incor- porated in the common law of England, and owing to the adoption or application of the common law by America, these principles of the old Roman law have been transplanted as a part of the laws of the different states of the United States. Courts frequently express themselves very forcibly against this method of giving; Justice Walton, in Drew v. Hagerty,^ says: "Gifts causa mortis ought not to be encouraged. They were often sus- tained by fraud and perjury that led finally to the enactment of statutes for the prevention of fraud and perjury." And the 1 — 1 Story's Equity Jur.. Sec. 606, and cases cited in notes. 2— Headley v. Kirby, 18 Pa. St. 326-328. 3—81 Me. 231. 243. 18 273 274 THE LAW OF ESTATES. same justice, in Hatch v. Atkinson:'^ "Courts regret that this species of gift has not been swept away by the Statute of Frauds." Such gifts, however, are well recognized and are a part of the established jurisprudence of the State of Illinois. It is said, or implied in the following cases, there is no limit to the extent of such a gift, provided, there is other property of the donor sufficient to satisfy his creditors.^ The application of the law concerning such gifts, often arises in the adminis- tration of estates; and generally leads to serious trouble and contest, owing to the complex questions of law, that must of necessity be applied where such gift is claimed. 337. Three principal requisites necessary to constitute a donatio causa mortis. First: The gift must be with a view of the donor's death. Second: It must have been made to take effect only in the event of the donor's death by existing disorder. Third: There must be an actual delivery of the subject of the donation.^ A delivery to a third person with direction to de- liver to the donee is sufficient, although the deliver}^ by the third person be not made until after the donor's death. The circum- stances should, however, show a full relinquishment of dominion over the property to the trustee for the purpose of the trust." It is essential to such gift, that the donor make it in his last illness, or in contemplation and expectation of death. The ap- prehension of death may arise from infirmity or old age, or from external and anticipated danger.^ The gift to be good in law must be made to take effect only in the event of the donor's 4—56 Me. 326. Roberts v. Draper, 18 111. App. 5— Roberts v. Draper, 18 111. 167; Barnes v. People, 25 111. App. App. 167; Woodburn v. Woodburn, 136; Ridden v. Thrall, 125 N. Y. 23 111. App. 289; Barnes v. People, 572. 25 111. App. 137; Seavey v. Seavey, 7— Telford v. Patton, 144 111. 30 111. App. 625; Telford v. Pat- 625; Williams v. Chamberlain, I. ton, 144 111. 621, 623; Martin v. 165 111. 210; Neville v. Jennings, Martin, 170 111. 29. 75 111. App. 503; Martin v. Martin, 6—1 Story's Equity Jur., 607a; 170 111. 18; 3 Redfield on Wills, Kenniston v. Sceva, 54 N. H. 24; Sec. 42. 8—2 Kent's Com. 1313, 1314. GIFTS CAUSA MORTIS AND INTER VIVOS. 275 death, by the existing disorder; for a gift to take effect imme- diately, is not such a gift.** A gift causa mortis, may be made to one in trust for the use and benefit of another ;i'^ and its validity is not affected by the fact that the donee takes it upon a trust, the terms and limitations of which are prescribed by the donor, and may vary according to subsequent events.^ ^ Money and bank notes of private individuals and drafts pay- able to the donor, also bonds and mortgages, are ail proper subjects of gifts of this kind, and need not be endorsed or as- signed.^ ^ But the promissory note or other contract of the do- nor, by which he or she undertakes to pay money, either during his life or out of his estate after donor's decease will not do, for such will not be considered a gift causa mortis; neither will his draft or check unaccepted.^^ A person making such a gift may remit a debt due to him, by surrender of the securities, with a verbal declaration of intention to that effect.^ ^ 338. Who may make gifts causa mortis. Any person pos- sessing the capacity to make a will may give his property mortis causa}^ Married women may in this state dispose of their separate property in this way, under the act of the legislature pertaining to husband and wife.^^ 9—3 Redfield on Wills, Sec. 42; on Wills, Sec. 42, and cases cited Marsh v. Prentiss, 40 111. App. 74; in notes; Shaw v. Camp, 160 111. Telford v. Patton, 144 111. 611; 425. Barnuni v. Reed, 136 111. 388; Illi- 14—3 Redfield on Wills, Sec. 42, nois Christian Missionary Conven- and cases cited in notes. lion V. Hall, 48 111. App. 546. 15— Champney v. Blanchard, 39 10—123 Ind. 321. N. Y. Ill, 113; Martin v. Martin, 11— Clough V. Clough, 117 Mass. 170 111. 28-30; Section 1, Chapter 83, 85; Telford v. Patton, 144 111. 148, "Wills." Starr & Curtis An- 611. notated Statutes of Illinois, with 12 — Martin v. Martin, 170 111. Jones (z Addington's Supplements 23-25; 3 Redfield on Wills, Sec. thereto. Vol. 3, p. 4021; Vol. 4, 42, and cases cited in notes. pp. 1283, 1284, and cases cited in 13 — Illinois Christian Mission- each volume under section noted-; ary Convention v. Hall, 48 111. Kurd's R. S. of 111. 1905, same sec- App. 536; Ridgeway v. McCartney, tion and chapter, p. 2050. 160 111. 129; Chamberlain v. Wil- 16— Section 9, Chapter 68, "Hus- liams, 62 111. App. 423; 3 Redfield band and Wife." Starr & Curtis 276 THE LAW OF ESTATES. 339. Such a gift may be made to one in trust, for the use and benefit of another/^ but possession must be in the donee or his trustee.i^ ^^ such a gift is an executed contract, delivery of the subject matter of the gift is of the essence of the title.^^ The delivery may be constructive, as of a key, or of a part for the whole.20 It has been held in some cases, where there has been a delivery to a trustee for the benefit of the donee, with- out the knowledge of the latter, acceptance by the donee is presumed, the gift being beneficial to him,2i and this applica- tion of the law by arguendo at least is sustained in Telford v. Patton.^2 340. All the elements must center in the gift to be valid. As has been said, all such gifts depend upon contingency of death, to take effect only in that event, coupled with the actual delivery of the subject of donation to the donee or some one for him in trust. Depending upon the contingency of death such gifts may be revoked, where the person does not meet with ex- pected death, all circumstances must combine so as to show that the donor intended the gift to take effect if he should die shortly after making such gift. If he or she should recover from his or her peril or anticipated death, the thing or subject of the gift should be restored to the donor. 23 The donee in this class of gifts derives his title directly from the donor and not in any sense from the personal representative of the donor.^* To Annotated Statutes of Illinois, 261; Telford v. Patton, 144 111. with Jones & Addington's Supple- 611. ments thereto. Vol. 2, p. 2126; 20 — 1 Parsons on Contracts, Vol. 4, p. 674; Vol. 5, p. 286, and page 234; Telford v. Patton, 144 cases cited in each volume under 111. 611; Martin v. Martin, 170 111. section noted; Kurd's R. S. of III 18. 1905, same section and chapter, p. 21 — Blasdel v. Locke, 52 N. H. 1147. 238; Darland v. Taylor, 52 Iowa 17— Deval v. Dye, 123 Ind. 321. 503; Deval v. Dye, 123 Ind. 321. . 18— Barnes v. People, 25 111. 22—144 111. 611. App. 137; Telford v. Patton, 144 23—2 Kent's Com. 1313, 1314; 111. 611; Martin v, Martin, 170 111. Nichols v. Adams, 2 Whart. 17; 18. Barnum v. Reed, 136 111. 588. 19 — Grover v. Grover, 24 Pick. 24 — Gaunt v. Tucker, 18 Ala. 27; GIFTS CAUSA MORTIS AND INTER VIVOS. 277 sustain such a gift all the elements of the law applicable to the subject must center in the transaction, the proof must be positively clear in relation to the donor's intention to make an absolute gift in contemplation of death ; and the burden of proof is of necessity cast upon the donee or the one claiming such gift; the court will look upon the whole transaction seriously, and with great caution examine all the facts and circumstances in relation to the gift with jealous care.^^ 341. The effect of such gift when established. With refer- ence to the effect of such gift after death of donor, it is good notwithstanding a previous will.^s A court of equity, in a proper case will enforce and ratify a gift causa mortis; par- ticularly when all the elements of the law have been complied with, and all the circumstances indicate or establish such a gift is valid.^'^ 342. A gift inter vivos, is chiefly distinguished from a gift causa mortis by the facts, that the former is not made in view of expected or impending death, and that it is not revocable in its nature. 28 It is essential to a donation inter vivos, that the gift be absolute and irrevocable, that the giver part with all present and future dominion over the property given, that the gift go into effect at once and not at some future time, that there be a delivery of the thing given to the donee, and there be ''such a change of possession as to put it out of the power of the giver to repossess himself of the thing given. ' '^^ To constitute a valid gift inter vivos, possession and title must pass to and vest in the Taylor v. Harrison, 79 111. App. 111. App. 453; Same v. Same, 160 380; Hagemann v. Hagemann, 90 111. 129; Telford v. Patton, 144 111. 111. App. 251. 620; Martin v. Martin, 170 111. 27. 25— Chase v. Redding, 13 Gray 28—3 Pomeroy's Eq. Jur. 1146- 418; Mitchell v. Pease, 7 Cush. 1150, and cases cited in notes to 350; Headley v. Kirby, 18 Pa. St. sections; 8 Am. & Eng. Ency. of 326. Law, pp. 1313-1330, and cases cited 26 — 2 Kent's Com. 1313, 1314; under gifts inter vivos. Hambrooke v. Simmons, 4 Russ. 29 — 1 Parsons on Contracts, 25. marg page 234; Telford v. Patton, 27— Ridgeway v. McCartney, 57 144 111. 620. 278 THE LAW OF ESTATES. donee, or in a trustee for the donee. If anything remains to be done to complete the gift, what so remains to be done cannot be enforced, as it is based upon no consideration ; and when the gift is thus incomplete, there is a locus poenitentiae, and the gift may be revoked.^" 343. Sufficiency of delivery to constitute a valid gift inter vivos. The deposit of securities, transferable by delivery, by the o'W'ner in a safe deposit box rented by his niece, who carried the key and to whom he w^as under great obligations for serv- ices, accompanied by oral declarations and written memoranda that ' ' everything in the box ' ' Avas to be hers, that he ' ' had no fur- ther claim" thereto and that he wanted his executors "to keep their hands off," constitutes a valid gift to the niece, although the uncle afterward took out and collected part of the securities and replaced them with others, and although, as to part of them, he had entered in his diary that his niece's ownership should be simultaneous with his death.^i 344. If such gift was made affecting the rights of dower, homestead and widows' or children's awards. The question has not yet been decided in Illinois, whether a gift causa mortis or intei' vivos can be made that will interfere with the rights of dower, homestead, widow's or children's award. These rights are conceded to have been created by enactments in the inter- est of public policy; and, it would seem very questionable Avhether a man of substance, can be allowed to dispose of any part of his estate by such gifts, unless he holds sufficient to pay his just debts, and the claims of dower, homestead and awards; and in fact contravenes no fixed and established duty he is com- pelled to observe under the law. 30— McCartney v. Ridgeway, 160 31— Martin v. Martin, 170 111. 111. 453. 19. CHAPTER XV INHERITANCE TAX LAW OF ILLINOIS Sec. Sec. 345. Inheritance tax law, when 360. passed, statute. 346. Rate oL' tax statute. 361, 347. Lineal descendants, life estate or for term or for years, 362. rule as to taxation, bond, statute. 363. 348. What institutions exempt 364. from such tax statute. 349. Taxes, when payable, penalty, 365, statute. 350. Inheritance tax, when, how, and by whom paid, statute, 351. Powers of executors and ad- ministrators, statute. 352. Tax to be paid to treasurer, sealed receipt, statute. 353. When real estate liable to tax; duty of executor, in- formation in writing to the treasurer, statute. 354. When portion of tax repaid to legatee, who has to re- fund, a portion of the lega- cy, statute. 355. Foreign executors or admin- istrators, property in the State, statute. 356. When tax paid erroneously, statute. 357. How value of property is fixed, statute. 358. Clerks' fees, statute. 359. Appraisers taking fee on award, penalty, statute. 279 366. 267. 368. 369, 370. 371. 372. 373, 374. Jurisdiction of county court, statute. Proceedings when tax has not been paid, statute. Duty of officers when tax has not been paid, statute. Statement in writing, statute. Expenses of proceedings, stat- ute. Books to be kept in the of- fice of the county judge, statute. Treasurer to pay the State Treasurer all taxes, statute. Treasurer's commission or salary, statute. Receipt, statute. Proceedings to test whether property is liable to tax, statute. Lien of the collateral inher- itance, statute. Repeal, statute. The act declared constitu- tional. Laws governing descent and devise of property in Illi- nois are wholly statutory, and may be changed at dis- cretion. Domicile, within the meaning of the inheritance act; what constitutes legal residence thereunder. 280 THE LAW OF ESTATES. Sec. Sec. 375. Time when tax accrues and becomes payable. 376. Jurisdiction and powers con- ferred upon county court and judge thereof under In- heritance Tax act. 377. Fair market value "casli value" appraisement. 378. Property and interest thereia liable to tax. 379. Exemptions. Sec. 345. Inheritance tax. The legislature of the State of Illinois, by an act entitled "An act to tax gifts, legacies and inheritances in certain cases and to provide for the collection of the same," approved June 15th, 1895, and amended and added to in part May 10, 1901, passed an act substantially as follows :^ 346. Rate of tax. Section (1) : ''All property, real, per- sonal and mixed, which shall pass by will or by the intestate laws, of this state from any person who may die seized or possessed of the same while a resident of this state, or, if decedent was not a resident of this state at the time of his death, which property or any part thereof shall be within this state or any interest therein or income therefrom, which shall be transferred by deed, grant, sale or gift made in contemplation of the death of the grantor or bargainor or intended to take effect, in possession or enjoy- ment after such death, to any person or persons or to any body politic or corporate in trust or otherwise, or by reason whereof any person or body politic or corporate shall become beneficially entitled in possession or expectation to any property or income thereof, shall be and is subject to a tax at the rate hereinafter specified to be paid to the treasurer of the proper county, for the use of the state; and all heirs, legatees and devisees, administra- tors, executors and trustees shall be liable for any and all such taxes until the same shall have been paid as hereinafter directed. 1— Sections 1 to 23 inclusive, 3528, et seq.; Vol. 4, p. 1103, et Chapter 120, "Revenue" Act. Starr seq.; Vol. 5, p. 490, and cases cited & Curtis Annotated Statutes of in each volume under sections of Illinois, with Jones & Addington's the act noted; Kurd's R. S. of 111. Supplements thereto. Vol. 3, p. 1905, same sections and chapter, p. 1711, et seq. INHERITANCE TAX LAW OF ILLINOIS. 281 "When the beneficial interests to any property or income therefrom shall pass to or for the use of any father, mother, husband, wife, child, brother, sister, wife or widow of the son or the husband of the daughter or any child or children adopted as such in conform- ity with the laws of the State of Illinois or to any person to whom the deceased, for not less than ten years prior to death, stood in the acknowledged relation of a parent, or to any lineal descend- ant born in lawful wedlock; in every such case the rate of tax shall be one dollar on every hundred dollars of the clear market value of such property received by each person and at and after the same rate for every less amount, provided that any estate which may be valued at a less sum than twenty thousand dollars shall not be subject to any such duty or taxes ; and the tax is to be levied in above cases only upon the excess of twenty thousand dollars received by each person. When the beneficial interests to any property or income therefrom shall pass to or for the use of any uncle, aunt, niece, nephew, or any lineal descendant of the same, in every such case the rate of such tax shall be two dollars on every one hundred dollars of the clear market value of such property received by each person on the excess of two thousand dollars so received by each person. In all other cases the rate shall be as follows : On each and every hundred dollars of the clear market value of all property and at the same rate for any less amount; on all estates of ten thousand dollars or less, three dollars; on all estates of over ten thousand dollars and not exceeding twenty thousand dollars, four dollars, and on all estates over twenty thousand dollars and not exceeding fifty thousand dollars, five dollars; and on all estates over fifty thou- sand dollars, six dollars : Provided, that an estate in the above case which may be valued at a less sum than five hundred dollars shall not be subject to any duty or tax."^ 347. Lineal descendant — life estate or for term of years — rule as to taxation — bond. Section (2) : "When any person shall bequeath or devise any property or interest therein or in- 2 — See statute cited ante 346. 282 THE LAW OF ESTATES. come therefrom to mother, father, husband, wife, brother and sister, the widow of the son or a lineal descendant during the life or for a term of years or remainder to the collateral heir of the decedent, or to the stranger in blood or to the body politic or corporate at their decease, or on the expiration of such term, the said life estate or estates for a term of years shall not be sub- ject to any tax and the property so passing shall be appraised immediately after the death at what was the fair market value thereof at the time of the death of the decedent in the manner hereinafter provided, and after deducting therefrom the value of said life estate, or term of years, the tax transcribed by this act on the remainder shall be immediately due and payable to the treasurer of the proper county, and, together with the interests thereon, shall be and remain a lien on said property until the same is paid : Provided, that the person or persons or body politic or corporate beneficially interested in the property chargeable with said tax elect not to pay the same until they shall come in the actual possession or enjoyment of such property, or, in that case said person or persons or body politic or corporate shall give a bond to the people of the State of Illinois in the penalty three times the amount of the tax arising upon such estate with such sureties as the county judge may approve, conditioned for the payment of the said tax and interest thereon at such time or period as they or their representatives may come into the actual possession or enjoyment of said property; which bond shall be filed in the office of the county clerk of the proper county : Pro- vided further, that such person shall make a full, verified return of said property to said county judge, and file the same in his office within one year from the death of the decedent, and within that period enter into such securities and renew the same for five years. "2 348. What institutions exempt from such tax. Section (2i^a) : "When the beneficial interests of any property or in- come therefrom shall pass to or for the use of any hospital, re- 2— Ante 345, note (1). Also ante 346, 347. INHERITANCE TAX LAW OF ILLINOIS. 283 ligious, educational, bible, missionary, tract, scientific, benevolent or charitable purpose, or to any trustee, bishop or minister of any church or religious denomination, held and used exclusively for the religious, educational or charitable uses and purposes of such church or religious denomination, institution or corporation, by grant, gift, bequest or otherwise, the same shall not be subject to any such duty or tax, but this provision shall not apply to any corporation which has the right to make dividends or distribute profits or assets among its members.* 349. Taxes — when payable — penalty. Section (3) : *'A11 taxes imposed by this act, unless otherwise herein provided for, shall be due and payable at the death of the decedent and inter- est at the rate of six per cent per annum shall be charged and collected thereon for such time as said taxes is not paid: Pro- vided, that if said tax is paid within six months from the accru- ing thereof, interest shall not be charged or collected thereon, but a discount of five per cent shall be allowed and deducted from said tax, and in all cases where the executors, administrators or trustees do not pay such tax within one year from the death of the decedent, they shall be required to give a bond in the form and to the effect prescribed in section 2 of this act for the pay- ment of said tax, together with interest."^ 350. Inheritance tax — ^when, how and by whom paid. Sec- tion (4) : "Any administrator, executor or trustee having any . charge or trust in legacies or property for distribution subject to the said tax shall deduct the tax therefrom, or if the legacy or property be not money he shall collect a tax thereon upon the appraised value thereof from the legatee or person entitled to such property, and he shall not deliver or be compelled to deliver any specific legacy or property subject to tax to any person until he shall have collected the tax thereon; and whenever any such legacy shall be charged upon or payable out of real estate the 4 — Statute cited ante 345, note July 1, 1901. Laws of 1901, p. (1); Sec. (2y2a): Added by act 268. approved May 10, 1901. In force 5 — Ante 345, note (1). 284 THE LAW OF ESTATES. heir or devisee before paying the same shall deduct said tax there- from, and pay the same to the executor, administrator or trustee, and the same shall remain a charge on such real estate until paid, and the payment thereof shall be enforced by the executor, ad- ministrator or trustee in the same manner that the said payment of said legacies might be enforced, if, however, such legacy be given in money to any person for a limited period, he shall retain the tax upon the whole amount, but if it be not money he shall make application to the court having jurisdiction of his accounts, to make an apportionment if the case requires it of the sum to be paid into his hands by such legatees, and for such further order relative thereof as the case may require."^ 351. Powers of executors and administrators. Section (5) : "All executors, administrators and trustees shall have full power to sell so much of the property of the decedent as will enable them to pay said tax, in the same manner as they may be enabled ' to do by law for the payment of duties of their testators and in- testates, and the amount of said tax shall be paid as hereinafter directed. ' ''^ 352. Tax to be paid to treasurer — sealed receipt. Section (6) : ''Every sum of money retained by any executor, adminis- trator or trustee, or paid into his hands for any tax on any property, shall be paid by him within thirty days thereafter to the treasurer of the proper county, and the said treasurer or treasurers shall give, and every executor, administrator or trus- tee shall take, duplicate receipts from him of said payments, one of which receipts he shall immediately send to the State Treas- urer, whose duty it shall be to charge the treasurer so receiving the tax with the amount thereof, and shall seal said receipt with the seal of his office and countersign the same and return it to the executor, administrator or trustee, whereupon it shall be a proper voucher in the settlement of his accounts ; but the execu- tor, administrator or trustee shall not be entitled to credit in his accounts or be discharged from liability for such tax unless he 6— Ante 345, note (1). 7— Ante 345, note (1). INHERITANCE TAX LAW OF ILLINOIS. 285 shall purchase a receipt so sealed and countersigned by the treasurer and a copy thereof certified by him."^ 353. When real estate liable to tax — duty of executor — information in writing to the treasurer. Section (7) : "When- ever any of the real estate of which any decedent may die seized shall pass to any body politic or corporate, or to any person or persons, or in trust for them, or some of them, it shall be the duty of the executor, administrator or trustee of such decedent to give information thereof in v^riting to the treasurer of the county where said real estate is situated, within six months after they undertake the execution of their expected duties, or if the fact be not known to them within that period, then within one month after the same shall have come to their knowledge."^ 354. When portion of tax repaid to legatee — who has to refund a portion of the legacy. Section (8) : "Whenever debts shall be proved against the estate of the decedent after distribution of the legacies from which the inheritant (inheri- tance) tax has been deducted in compliance with this act, and the legatee is required to refund any portion of the legacy, a pro- portion of the said tax shall be repaid to him by the executor or administrator if the said tax has not been paid into the state or county treasury, or by the county treasurer if it has been so paid. "10 355. Foreign executor or administrator — property in the state. Section (9) : "Whenever any foreign executor or ad- ministrator shall assign or transfer any stocks or loans in this state standing in the name of decedent, or in trust for a decedent, which shall be liable to the said tax, such tax shall be paid to the treasury or treasurer of the proper county on the transfer thereof, otherwise the corporation forming such transfer shall become liable to pay such taxes, provided that such corporation has knowledge before such transfer that said stocks or loans are liable to such taxes. "^^ 8— Ante 345, note (1). 10— Ante 345, note (1). 9— Ante 345, note (1). 11— Ante 345, note (1). 2«6 THE LAW OF ESTATES. 356. When tax paid erroneously. Section (10): "When any amount of said tax shall have been paid erroneously to the State Treasurer, it shall be lavvful for him on satisfactory proof rendered to him by said county treasurer of said erroneous pay- ments to refund and pay to the executor, administrator or trus- tee, person or persons who have paid any such tax in error the amount of such tax so paid, provided that all applications for the payment of said tax shall be made within two years from the date of said payment. "12 357. How value of property fixed. Section (11) : ''In order to fix the value of property of persons whose estate shall be subject to the payment of said tax, the county judge, on applica- tion of any interested party, or upon his own motion, shall ap- point some competent person as appraiser as often as or when- ever occasion may require, whose duty it shall be forthwith to give such notice by mail, to all persons known to have or claim an interest in such property, and to such persons as the county judge may, by order direct, of the time and place he will ap- praise such property, and at such time and place to appraise the same at a fair market value, and for that purpose the appraiser is authorized, by leave of the county judge, to use subpoenas for and to compel the attendance of witnesses before him, and to take the evidence of such witnesses under oath concerning such property and the value thereof, and he shall make a report thereof and of such value in writing to said county judge, with the depositions of the witnesses examined and such other facts in relation thereto and to said matters as said county judge may, by order, require to be filed in the office of the clerk of said county court, and from this report the said county judge shall forthwith assess and fix the then cash value of all estates, an- nuities and life estates or terms of years growing out of said estate, and the tax to which the same is liable, and shall imme- diately give notice by mail to all parties known to be interested therein. Any person or persons dissatisfied with the appraise- 12— Ante 345, note (1). • INHERITANCE TAX LAW OF ILLINOIS. 287 ment or assessment may appeal therefrom to the county court of the proper county within sixty days after the making and filing of such appraisement or assessment on paying or giving security satisfactory to the county judge to pay all costs, to- gether with whatever taxes shall be fixed by said court. The said appraiser shall be paid by the county treasurer out of any funds he may have in his hands on account of the inheri- tance tax, as by law provided, on the certificate of the county judge, such compensation as such judge may deem just for said appraiser's services as sucli appraiser, not to exceed ten dollars per day for each day actually and necessarily employed in said appraisement, together with his actual and necessary traveling expenses and disbursements, including such witness fees paid by him. "13 358. Clerk's fees. Section (lli/o) : ''The fees of the clerk of the eoimty court in inheritance tax matters in the respective counties of this state, as classified in the act concerning fees and salaries, shall be as follows: In counties of the first and second class, for services in all proceedings in each estate before the county judge, the clerk shall receive a fee of five dollars. In all such proceedings in counties of the third class, the cierk shall receive a fee of ten dollars. Such fees shall be paid by the county treasurer, on the certificate of the county judge, out of any money. in his hands, on account of said tax. In counties of the third class, the Attorney General of (the) state may appoint an attorney, who shall be known as the "inheritance tax attorney," and whose salary shall be not to exceed three thou- sand dollars per year, payable monthly out of the state treas- ury upon warrants drawn by the auditor of public accounts, on vouchers approved by the Attorney General. In counties of the third class, the clerk of the county court may appoint a clerk in the ofiice of the clerk of said court, to be known as the "in- heritance tax clerk," Avhose compensation shall be fixed by the 13 — As amended by act approved 1901. Laws of 1901, p. 269. See May 10, 1901. In force July 1, statute cited ante 345, note (1). 288 THE LAW OF ESTATES. county judge, not to exceed fifteen hundred dollars per year, and not to exceed the fee earned in said office in inheritance tax matters, the surplus of such fees over said compensation so fixed to be turned into the county treasury. In addition to the above, the clerk of the county court shall be entitled, in all suits brought for the collection of delinquent inheritance tax, and all contested inheritance tax cases appealed from the county judge to the county court, and in all appeals from the county court to the supreme court, the same fees as are now, or which may hereafter be, allowed by law in suits at law, or in the matter of appeals at law, to or from the county court, which fees shall be taxed as costs and paid as in other cases at law; and in all cases arising under this act, including certified copies of documents or records in his office, for which no specified fees are provided, the clerk of the county court shall charge against and collect, from the person applying for, or entitled to such service, or certified copies, the same fees as are now, or which may hereafter be, al- lowed for similar services or certified copies in other cases in said court, and for recording inheritance tax receipts required to be recorded in his office, he shall receive the same fees which now are, or hereafter may be, allowed by law to the recorder of deeds for recording similar instruments."^* 359. Appraisers taking fee or reward — penalty. Section (12) : "Any appraiser appointed by this act who shall take any fee or reward from any executor, administrator, trustee, legatee, next of kin or heir of any decedent, or from any other person liable to pay said tax or any portion thereof, shall be guilty of a misdemeanor, and upon conviction in any court hav- ing jurisdiction of misdemeanors he shall be fined not less than two hundred and fifty dollars nor more than five hundred dollars and imprisoned not exceeding ninety days; and in addition thereto the county judge shall dismiss him from such service. "^^ 14 — Sec. (11%) added to act, ap- See statute cited ante 345, note proved May 10, 1901. In force (1). July 1, 1901. Laws of 1901, p. 270. 15— Ante 345, note (1). INHERITANCE TAX LAW OF ILLINOIS. 289 360. Jurisdiction of County Court. Section (13) : "The county court in the county in which the real property is situated of the decedent who was not a resident of the state or in the county of which the deceased was a resident at the time of his death, shall have jurisdiction to hear and determine all questions in relation to the tax arising under the provisions of this act, and the county court first acquiring jurisdiction hereunder shall retain the same to the exclusion of every other. "^^ 361. Proceedings when tax has not been paid. Section (14) : If it shall appear to the county court that any tax accruing under this act has not been paid according to law, it shall issue a summons summoning the persons interested in the property liable to the tax to appear before the court on a day certain not more than three months after the date of such summons, to show cause why said tax should not be paid. The process, practice and pleadings, and the hearing and determination thereof, and the judgment in said court in such cases shall be the same aa those now provided, or which may hereafter be provided in pro- bate cases in the county courts in this state, and the fees and costs in such cases shall be the same as in probate cases in the county courts of this state. "^'^ 362. Duty of officers when tax not paid. Section (15) : "Whenever the treasurer of any county shall have reason to believe that any tax is due and unpaid under this act, after the refusal or neglect of the person interested in the property liable to pay said tax to pay the same, he shall notify the state's attor- ney of the proper county, in writing, of such refusal to pay said tax and the state's attorney so notified if he has proper cause to believe a tax is due and unpaid shall prosecute the proceedings in the county court in the proper county as provided in section 14 of this act for the enforcement and collection of such tax, and in such case said court shall allow as costs in the said case such fees to said attorney as he may deem reasonable. "^^ 16— Ante 345, note (1). 18— Ante 345, note (1), 11-- Ante 345, note (1). 19 290 THE LAW OF ESTATES. 363. Statement in writing. Section (16) : "The county- judge and county clerk of each county shall every three months make a statement in writing to the county treasurer of the county of the property from wliieh or the party from whom he has reason to believe a tax under this act is due and unpaid. "^^ 364. Expenses of proceedings. Section (17): "Whenever the county judge of any county shall certify that there was probable cause for issuing a summons and taking the proceedings specified in section fourteen of this act the State Treasurer shall pay or allow to the treasury of any county all expenses incurred for service of summons and his other lawful disbursements that has not otherwise been paid. "2*^ 365. Book to be kept in the office of the county judge. Sec- tion (18): "The treasurer of the state shall furnish to each county judge a book in which he shall enter the returns made by appraisers, the cash value of annuities, life estates and terms of years and other property fixed by him, and the tax assessed thereon and the amounts of any receipts for payments thereof filed with him, which books shall be kept in the office of the county judge as a public record."-^ 366. Treasurer to pay the state treasurer all taxes. Section (19) : "The treasurer of each county shall collect and pay the State Treasurer all taxes that may be due and payable under this act, who shall give him a receipt therefor, of which collection and payment he shall make a report under oath to the Auditor of Public Accounts on the first Monday in March and Septem- ber of each year, stating for what estate paid and in such form and containing such particulars as the Auditor may prescribe; and for all said taxes collected by him and not paid to the State Treasurer by the first Monday of October and April of each year, he shall pay interest at the rate of ten per cent per annum. "22 367. Treasurer's commission or salary. Section (20) : "The treasurer of each county shall be allowed to retain two per cent IQ—Ante 345, note (1). 21— Ante 345, note (1). 20— Ante 345, note.(l). 22— A7ite 345, note (1). INHERITANCE TAX LAW OF ILLINOIS. 291 on all taxes paid and accounted for by him under this act in full for his services in collecting and paying the same in addi- tion to his salaiy or fees now allowed by law. "23 368. Receipt. Section (21) : "Any person or body politic or corporate shall, upon the payment of the sum of fifty cents, be entitled to a receipt from the county treasurer of any county or the copy of the receipt at his option that may have been given by said treasurer for the pajnnent of any tax under this act to be sealed with the seal of his office, which receipt shall designate on what real property, if any, of which any deceased may have died seized, said tax has been paid and by whom paid, and whether or not it is in full of said tax and said receipt may be recorded in the clerk 's office of said county in which the prop- erty may be situated in the book to be kept by said clerk for such purpose. "24 369. Proceedings to test whether property is liable to the tax. Section (2I14) : "When any person interested in any property in this state, which shall pass by will or the intestate laws of this state, shall deem the same not subject to any tax un- der this act, he may file his petition in the county court of the proper county to determine whether said property is subject to the tax herein provided, in which petition the county treasurer and all persons known to have or claim any interest in said property shall be made parties. The county court may hear the said cause upon the relation of the parties and the testimony of witnesses, and evidence produced in open court, and, if the court shall find said property is not subject to any tax, as herein pro- vided, the court shall, by order, so determine; but if it shall appear that said property, or any part thereof, is subject to any such tax, the same shall be appraised and taxed as in other cases. An adjudication by the county court, as herein provided, shall be conclusive as to the lien of the tax herein provided upon said property, subject to appeal to the supreme court of the state by the county treasurer, or Attorney General of the state, 23— Ante 345, note (1). 2i—Ante 345, note (1). 292 THE LAW OF ESTATES. in behalf of the people, or by any party having an interest in said property. The fees and costs in all eases arising under this section shall be the same as are now, or may hereafter be, allowed by law in cases at law in the county court. ' '^s 370. Lien of the collateral inheritance tax. Section (22) : "The lien of the collateral inheritance tax shall continue until the said tax is settled and satisfied: Provided, that said lien shall be limited to the property chargeable therewith; and, pro- vided further, that all inheritance taxes shall be sued for within five years after they are due and legally demandable, otherwise they shall be presumed to be paid and cease to be a lien as against any purchasers of real estate. "^^ 371. Repeal. Section (23) : "All laAvs or parts of laws inconsistent herewith be and the same are hereby repealed. "^7 372. The act declared constitutional. In the case of Koch- ersperger v. Drake,^^ the court holds the inheritance act to be consistent with the constitution of the State of lUinois.^^ It is said in the opinion of the court : Laws of this character have been sustained in Pennsylvania, New York, Maryland, Virginia, North Carolina and other states. They have been held invalid in New Hampshire and Ohio and some other states. We are not disposed to enter into an analysis of these cases and a considera- tion of the principles on which they have been decided. The broad principle presented is, that the legislature may create new classes of property with reference to estates, under which they may regulate the right to inherit or devise and take under de- vise, and such right existing, such classes may be created, and as created may be uniform, and the assessment by valuation, 25 — Sec. (211/2) added by act ap- Article 9, Sections 1 and 2; Starr proved May 10, 1901. In force & Curtis Annotated Statutes of July 1, 1901. Laws of 1901, p. 271. Illinois, with Jones & Addington's See ante 345, note (1). Supplements thereto. Vol. 1, p. 26 — Ante 345, note (1). 165; Vol. 4, p. 15, and authorities 27 — Ante 345, note (1). cited under sections noted. Hurd'a 28—167 111. 122. R. S. of 111. 1905, pp. 68, 69. 29— Constitution of Illinois 1870, INHERITANCE TAX LAW OF ILLINOIS. 293 when declared to operate equally on the right of succession to such classes, is not a violation of the provisions of the sections of Article 9 of the constitution of the State of Illinois. 373. Laws governing descent and devise of property in Illi- nois are wholly statutory and may be changed by the legisla- ture at discretion. The reasoning of the court in the case of Eochersperger v. Drake,^^ affords a good illustration of the right of any state where the constitution permits, to pass laws taxing gifts, legacies and inheritances. "The laws of descent and the right to devise and take under a will within the State of Illinois owe their existence to the statute law of the state. The right to inherit and the right to devise being depend- ent on legislative acts, there is nothing in the constitution of this state which prohibits a change of the law with reference to those subjects at the discretion of the law-making power. The laws of descent and devise being the creation of the statute law, the power which creates may regulate and may impose condi- tions or burdens on a right of succession to the ownership of property to which there has ceased to be an owner because of death, and the ownership of which the state then provides for by the law of descent or devise. The imposition of such a con- dition or burden is not a tax upon the property itself, but on the right of succession thereto. To deny the right of the state to impose such burden, is to deny its authority to regulate the administration of decedent's estate. 374. Domicile — when party is a resident within the mean- ing of the inheritance tax act — what constitutes legal residence under the act. The "residence" in Illinois contemplated by the Inheritance Tax act is synonymous with "domicile" or "abode." To bring about a change of residence there must not only be an intention to make the change, but the same must be actually effected by abandoning the old residence and per- manently locating in a new one. One who has decided to move 30—167 111. 122; Ayers v. Chica- go Title and Trust Co., 187 111. 42. 294 THE LAW OP ESTATES. from Illinois to the home of his daughter in another state as soon as his business is settled, but in the meantime is taken ill and is taken by his daughter to her home for medical treatment and care, where he dies within a short time, will be deemed a resident of Illinois at the time of his death, within the mean- ing of the Inheritance Tax act, where it appears such change was not expected to be permanent, everything being left undis- turbed at the old home.^i 375. Time when tax accrues and becomes payable. Gen- erally speaking an appraisal of an estate under the Inheritance Tax act is to be made as of the date of the testator's death. As to estates in remainder not contingent, the appraisal is to be made as of the date of the testator's death, and not at the death of the life tenant. Ayers v. Chicago Title and Trust Co.^^ This case holds that the statute imposing a tax on property passing by will or descent, and providing that taxes on estates in remainder, shall be immediately due and payable after ap- praisal; unless the remaindermen "elect not to pay the same until they shall come into actual possession; and where remain- dermen do not or cannot make an election, the tax on the re- mainder becomes immediately due and payable. And in that case, the tax was held to take effect though the remaindermen could not be individually identified until the termination of the life estate, which upon the death of the life tenant was to go to trustees, to be divided according to the inheritance laws. But where remote and contingent interests are incapable of 31— People V. Moir, 207 111. 180; People, 189 111. 472; Magoun v. 10 Am. & Eng. Ency. of Law, 2d 111. Trust and Savings Bank, 170 ed., p. 9; Cooley on Taxation, 2d U. S. 283; Peoria Gaslight Co. v. ed., p. 369; Thorndyke v. City of Peoria Terminal Ry. Co., 146 111. Boston, 1 Mete. 242; Hayes v. 372-377. The rule was adopted Hayes, 74 111. 312; Du Puy v. where the appraiser based his ap- Wurtz, 53 N. Y. 556; People v. praisal upon public sales of securi- Moir, 207 111. App. 188-189. ties at the Stock Exchange. In re 32—187 111. 42; see also the fol- Gould Estate, 46 N. Y. Sup. Ct. lowing cases: Walker v. The 506; People v. Coleman, 107 N. People, 192 111. 106; Billings v. Y. 544. INHERITANCE TAX LAW OF ILLINOIS. 295 valuation, and as to which the rate and the exemption cannot be determined, the denial of the state to impose such a burden or condition is to deny the right of the state to regulate the administration of a decedent's estate." 376. The jurisdiction and powers conferred upon the County Court and the judge thereof under the inheritance tax act have been upheld. The power conferred by the legislature upon the county court and judge thereof, to make the appraisement and assessment under the inheritance tax law, also the power conferred upon said court and judge thereof, to ascertain and determine the character of any hospital, religious, educational, bible, missionary, tract, scientific, benevolent or charitable in- stitution, etc., made the beneficiary under any will, and to find the fact whether such institutions are making dividends or distributing profits or assets among its members, has been up- held in the ease of Provident Hospital mid Training School v. The People?^ And it is held in the case cited, the tax may be enforced even though the will was not probated before the amendatory act of 1901, took effect. The testator died June 7, 1901, making the hospital named his residuary legatee. The will was probated July 10, 1901, and proceedings for the appraisement of the property according to section 11 was taken on November 4th, 1901. The act section 367a (2I/2), post, ap- proved May 10, 1901, in force July 1, 1901, exempting certain institutions from such tax, except "those which have the right to make dividends or distribute profits or assets among its members." The court holding, a tax under the inheritance tax law becomes due and payable at the death of the testator; and hence if the testator died before the amendatory act of 1901, exempting legacies to hospitals, took effect, the county court has power to make the appraisement and assessment upon a legacy to a hospital, given by the will, and the tax may be enforced 33— Provident Hospital and 198 111. 495; Sherrell v. Christ's Training School v. The People, Church of Poughkeepsie, 121 N. Y. 70L 296 THE LAW OF ESTATES. even though the will was not probated before the act took effeet.34 377. Fair market value, cash value — appraisement. In Wal- ker V. People,^^ it is said: "The Inheritance Tax law provides the method and machinery for the valuation of property coming within the operation of the law. Section (1) atite 346 of the statute uses the expression "clear market value of such prop- erty received by each person." Section (11) ante 357 uses the phrases "value," "fair market value," and "cash value." In arriving at the fair value of property, the appraiser, under the act, has to be guided by the fair market value thereof, and in ascertaining the same is authorized to call witnesses for that purpose. Under the act, the appraiser and the county judge and the county court are not limited in the valuation of property to the market quotations of the same, but, for the purpose of finding the fair cash value of the same, they may use the quotations of the same on the public exchanges, private sales of such property, testimony as to the actual value of the same, and their own knowledge of the subject matter. "Fair market value" has never been construed to mean the selling price of property at a forced or involuntary sale.^^ The fair market value of shares of stock in corporations, under the inheritance tax law, is not 34 — Provident Hospital and nois which would authorize the Training School v. The People, 198 imposition of an inheritance tax, 111. 495. In the case of Connell v. is one of "practical and actual Crosby, 210 111. 380, and cases ownership — the possession of a ti- cited in the opinion, it is held, tie to something that can be con- the section of the act in question, veyed." The court repeating the exempting educational bequests language of Mr. Justice Finch, In from such tax, is not retroactive, re Hoffman's Estate, 143 N. Y. In Billings v. The People, 189 111. 327: "The state will get its tax 472, it is held, that an assessment when the legatees get their prop- of the tax should be postponed erty." until the interest passing is capa- 35 — 192 HI., page 110. ble of valuation. In the case of 36 — Peoria Gaslight Co. v. Peo- The People v. McCormick, 208 111. ria Terminal Railway Co., 146 111. 443-444, it is held, the condition 372. In re Gould's Estate, 46 N. Y. contemplated by the statute of Illi- Sup. Ct. 506; People v. Coleman, 107 N. Y. 544. INHERITANCE TAX LAW OF ILLINOIS. 297 wliat they would bring at a forced sale if all should be put on the market at once, but what they would bring at a sale at or about the time of the testator's death, after due notice, under fair conditions and in the ordinary course of business.^ '^ In the case of Ayers v. Chicago Title and Trust Co.,^^ it is said: It is the duty of the court to fix the cash value of all estates, annuities, life estates or for a term of years, and the tax to which they are liable; and hence the appraisement should show the value of the estate received by each residuary legatee under the will, after deducting the value of all gifts and legacies preceding the residuary clause. 378. Property and interest therein liable to tax. Under the inheritance tax act, all property passing by will or descent is liable to be taxed. Thus an estate for life, or remainder, whether vested or contingent, is liable for such tax.^^ As between the widow and the state, the law will tax the dower interest whether the widow accepts a devise for her benefit, or elects to take dower in lieu thereof. ^° Section 2, providing "that when any person shall devise any property to mother, father, husband, wife, brother and sister, the widow of the son, or a lineal descendant, during the life or for a term of years," or "re- mainder to the collateral heir of the decedent, or to a stranger in blood, or to the body politic or corporate, at their decease or on the expiration of such term, the life estate or estates for a term of years shall not be subject to any tax," exempts only life estates with remainder to collaterals, strangers in blood, or to a body politic or corporate from the tax imposed by section 1, and not all life estates, since the word "or" in section 2 means "and" or "with." And it is also held the term "intestate laws" used in Inheritance Tax Law, as used in section 1 pro- viding for such tax on all property which shall pass "by will or by the intestate laws of this state," means those laws of the 37— Walker v. People, 192 111. 39— Ayers v. Chicago Title and 110. Trust Co., 187 111. 42. 38—187 III. 42. 40— Billings v. The People, 189 111. 472. 298 THE LAW OF ESTATES. state Avhieli govern the devolution of estates of persons dying intestate, and includes all applicable rules of the common law in force in this state. ^^ In Connell v. Crosby, '^^ it is said: Section 2 of the Inheritance Tax act, exempting from the tax a life estate devised or bequeathed to the wife, has no applica- tion where the wife renounces the will and elects to take other interests in the testator's property than the life estate devised or bequeathed to her. In People v. McCormick,'^^ the term "ex- pectation," used in section 1 of the Inheritance Tax act, where a person shall become beneficially entitled, in possession or ex- pectation, to any property or income thereof, means a condition where the title is vested and indefeasible, the right to immediate enjoyment being postponed. The condition under the act which authorizes the imposition of the tax is one of actual ownership — the possession of a title to something which can be conveyed. A contingent estate cannot be taxed until it becomes vested, nor can an estate which is vested subject to defeasance be taxed until it becomes indefeasible."^'* "The right to tax is based upon the right to succeed. The amount of the tax is fixed by the amount of the property which, as the result of the right to succeed, passes to the beneficiary. The tax is levied on the succession, and not on the property as such. The rate must be determined by the right of succession where the beneficiary is a stranger, and the exemption, if any, must be determined by the identity of the person who succeeds. When the bases of the tax, the rate, and the exemption, if any, cannot be fixed, the tax itself cannot be fixed. No other course is left open, in the practical administration of the statute, than to postpone the assessing and collecting of the tax upon such remote and con- tingent interests as are incapable of valuation and as to wliieh the rate and the exemptions cannot be determined. "^^ "The 41— Billings v. The People, 189 45— People v. McCormick, 208 111. 472. III. 437; Billings v. The People. 42—210 111. 380. 189 111. 472; In re Hoffman's 43—208 111. 437. Estate, 143 N. Y. 327; In re Roose- 44— Ayers v. Chicago Title and velt's Estate, 143 N. Y. 120; In re Trust Co.. 187 111. 42. Stewart's Estate, 131 N. Y. 274; INHERITANCE TAX LAW OF ILLINOIS. 299 state will get its tax when the legatees get their property. "^^ If the actual intention of the parties to a deed is that the pos- session and enjoyment of the lands are postponed until the grantor's death, the Inheritance Tax act is applicable, notwith- standing such intention is not evidenced in writing. Where deed to lands are executed simultaneously with a partnership agreement between the grantor and the grantees, his sons, and the income from the lands is thereafter carried into the partner- ship account, one-half going to the grantor and the remainder to the grantees, the one-half of the land as to which possession is thereby postponed is subject to the Inheritance Tax act.^''' An interest transferred by deed, grant, sale or gift is taxable, under section 1 of the Inheritance Tax act if made in expecta- tion of death or having death in view, whether there was a fraudulent intent thereby to evade the law or not.'*^ Gifts causa mortis would be within the statute.^^ In Merrifield v. People,^^ the subject matter of the trans- fer was both real and personal property, and the transfers were absolute, and not upon the condition that they should be revocable in case of the recovery of the donor. They were, how- ever, made in contemplation of his death. They fell, therefore, within the description of gifts ititer vivos, made in contempla- tion of death, rather than within the designation gifts causa mortis. Under this statement of the facts it was held : "As pro- vided by section 1 of the Inheritance Tax act, all property, real, personal and mixed, or any interest therein or income therefrom, which shall be transferred by 'deed, grant, sale or gift, made in contemplation of the death of the grantor or bargainor, or intended to take effect in possession or enjoyment after the 7n re Curtis Estate, 142 N. Y. 219 ; 207 HI. 180; Reish v. Common- In re Seaman's Estate, 147 N. Y. wealth, IOC Pa. St. 521; Appeal of C9; In re Dow's Estate, 167 N. Y. Seibert, 110 Pa. St. 329. 233; In re Sloan's Estate, 154 N. 48— Rosenthal v. The People, Y. 109. 211 111. 306. 46—143 N. Y. 327. 49— Telford v. Patton, 144 111. 47— People v. Estate of Moir, 611. 50—212 111. 400. 300 THE LAW OF ESTATES, death of the grantor or bargainor or shall be subject to a tax," etc. The property in question shown by the record was con- veyed without consideration, and for the purpose of placing the title in the grantees prior to the death of the decedent. It being said: "It is therefore clear the transfers were gifts, made in conteraplation of death. The statute provides in case of gifts, an inheritance tax shall be collected if (1) the gift Avas made in contemplation of the death of the donor, or (2) was intended to take effect in possession or enjoyment after the death of the donor. It will be observed, however, the stat- ute does not provide the donee of property shall be liable for an inheritance tax, but only provides he shall be liable for an inher- itance tax when the transfer is made in contemplation of the death of the donor." 379. Exemptions. Lands situate in states other than Illinois, and belonging to one who was a resident of Illinois at the time of his death, are not subject to our Inheritance Tax law.^i In the case of Connell v. Crosby,^" the will in question directed the conversion of the real estate into money for the purpose of creating a fund to be devoted to the establishment of the "William and Vashti College," and it was argued, page 390, that under the doctrine of equity the land is to be regarded as converted into personalty, and therefore urged, that the bequest of the proceeds of the sale of the real estate is subject to the inheritance tax, as being personalty. Held: "The doc- trine of equitable conversion is recognized in equity only, and is not given effect in courts of law." It cannot be applied in proceedings for the collection of inheritance or succession taxes. ' '^3 Life estates or for a term of years, which are specifi- cally enumerated in section (2) ante 347, of the Inheritance Tax law, are the only estates not subject to tax; and this exemption is dependent upon the further requirement that the 51— Connell v. Crosby, 210 111. 52—210 111. 380-390; 7 Am. & 380-388-390; Wunderle v. Wunderle, Eng. Ency. of Law, 2d ed., 465. 144 111. 40; Smith v. Smith, 174 53— /n re Swift's Estate, 32 N. 111. 52; Button v. Board of Review, E. Rep. 1096. 188 111. 386. INHERITANCE TAX LAW OF ILLINOIS. 301 I remainder shall be to the collateral heirs of the decedent, or to a stranger in blood or to a body politic or corporate.^^ And under section 2l^ of the Inheritance Act, ante 348, exempt- ing from the inheritance tax, gifts to any hospital, religious or charitable society, the statute is not self-executing, since such section provides, that such exemption shall not extend to any corporation or association, which has the right to make divi- dends or distribute profits among its members; therefore, the county clerk must determine the character of the beneficiary.^^ The amendatory act of 1901 (section 2i/o, Inheritance Tax act, ante 348) was adopted for the purpose of relieving certain be- quests, devises or gifts from the operation of the original act of 1895, The act does not apply to foreign corporations, but only to corporations created under the authority of the state which has over such, the power of visitation and control; unless, the intent, that the act shall apply to other than domestic corpora- tions is plainly expressed in the terms of the act.^"^ It is further said. In re Estate of Speed, page 29 : It has frequently been declared to be a well established principle of con- stitutional law, that a corporation is not a ' ' citizen, ' ' within the meaning of the first clause of section 2 of article 4 of the con- stitution of the United States, which declares the citizens of such state shall be entitled to all privileges and immunities of citizens of the several states.^ '^ Foreign corporations are not 'within the jurisdiction' of a state other than that which created them, within the meaning of those words as employed in section one of the fourteenth amendment, until they have fulfilled the conditions authorizing their admission into such state.^^ ^ 54 — Ayers v. Chicago Title and phrey v. State, 70 N. E. Rep. 957. Trust Co., 187 III. 42. 57— /» re Estate of Speed, 216 55 — Provident Hospital and III. 23-29; Ducat v. City of Chi- Training School v. The People, 198 cago, 48 111. 172 ; Same v. Same, 111. 495. 10 Wall. (U. S.) 410; Tatem v. 56 — In re Estate of Speed, 216 Wright, 23 N. J. L. 429; Pembia 111. 23; Dos Passos on Inheritance Consl'd Silver Mining Co. v. Penn- Tax Law (2d ed.), section 36; sylvania, 125 U. S. 181. People V. Western Seaman's 58 — Blake v. McClurg, 172 U. S. Friend Society, 87 111. 246; Bailie's 239; In re Estate of Speed, 216 Estate, 39 N. E. Rep. 1007; Hum- III. 23-30. 302 • THE LAW OF ESTATES. foreign corporation is not, as to any other state, than that where it was created, a 'person within its jurisdiction,' within the meaning of the fourteenth amendment, until it has complied with the laws of such state authorizing it to do business there. The act of 1901, exempting from inheritance tax, property de- vised to the use of religious, educational or charitable corpora- tions, does not violate the constitutional rule of uniformity of taxation by reason of its failure to extend the immunity to foreign corporations.^^ In the case of People v. Kelley,^^ the important fact shown by the record in that case, being, that a trust deed was made by decedent as a provision for the grantor 's two sons. The deed was held from record by mutual agree- ment between the parties, but was fully delivered to the trustee and possession of the premises turned over to the trustee at the time of the delivery of the deed in trust. The court held, page 515 : ' ' We have examined this record with care, and have been unable to discover any evidence which tends even remotely to show that David Kelley thought he was about to die at the time he executed said trust deed, or that he made said trust deed in contemplation of his death. It is not the object of the statute to prevent a parent from giving the whole or any portion of his property to his children during his lifetime, if he so desires. The only effect of the statute as a revenue measure is to sub- ject property to an inheritance tax if the gift is made in con- templation of the death of the donor." Attention is called in this opinion and distinction is made between the case at bar and that of Bosenthal v. People and Merrifield v. People.^^ "Where the evidence clearly shows both Rosenthal and Merrifield were about to die at the time they made transfers of the bulk of their estates, in contemplation of death, which they knew was likely to follow almost immediately. The case of People v. 59 — Blake v. McClurg, 172 U. S. distinction is made between these 239; In re Estate of Speed, 216 111. cases and that of People v. Kelley, 23-30. 218 111. 515. The latter case it is 60—218 111. 509-515. said by the court applies the doc- 61—211 111. 306; 212 111. 400; a trine laid down in the case of Peo- ple V. Moir, 207 111. 180. INHERITANCE TAX LAW OF ILLINOIS. 303 Kelley, supra, applies the doctrine laid down in People v. Moir, to the effect : That where a trust deed, not made in contempla- tion of death, takes effect on delivery, for the sole benefit of the cestuis que trust (the three sons of Moir), the county court and judge thereof under the powers conferred by the Inheri- tance Tax act, may separate the portion to take effect in presenti and in futuro, and apply the inheritance tax to so much of the estate as was necessary to create an annual income subjected to such tax.^2 62— People v. Moir. 207 111. 180. 110 Pa. St. 329, 24 Am. and Eng. See also Reish v. Commonwealth, Ency. of Law, p. 464, which gives 106 Pa. St. 521; Appeal of Seibert, the doctrine applied in the case of People V. Moir. CHAPTER XVI LAND TITLES-" TORRENS LAW" Sec. 380. Land titles "Torrens law." 381. The applicant must prove ti- tle as against all the world. 382. The relation of the examiner under the act, that of mas- ter. 383. The act extends to executors, Sec. administrators and trustees, unless excused by probate court. 384. Application to be referred to examiners, proceedings of. 385. Submission of question as to adoption of act. Sec. 380. Land titles — "Torrens Law." In 1897, the legis- lature of Illinois passed an act, which went into force May 1, 1897, entitled "An Act Concerning Land Titles," commonly known as the "Torrens Law." The act comprises 62 sections, 1 to 61a, chapter 30, entitled " Conveyances. "^ The first case under this act was in the nature of quo warranto proceedings, intended to test its constitutionality.- The supreme court by a very elaborate and learned opinion passes upon the many points raised against the act, upholding the constitutionality of the same, with the exception of those sections in the act, which relate to descent of lands on the death of a registered owner; and also to those sections of the act relating to the sale and mortgage of real estate belonging to minors and others under disability. The court holding those sections involve a construction that may only be satisfactorily determined when cases shall arise involving their validity, and which would not go to the validity of the whole law. On pages 176, 177, the opinion states: "The true theory of this act, as we understand it, is, that all holders of 1— Starr & Curtis Annotated Kurd's R. S. of 111. 1905, pp. 472 Statutes of Illinois, with Jones & to 490, inclusive. Sections 1 to Addington's Supplements thereto, 61a, Chapter 30, entitled "Con- Vol. 4, pp. 259 to 282, inclusive; veyances." Vol. 5, pp. 120 to 122, inclusive; 2— People v. Simon, 176 111. 165. 304 LAND TITLES— "TORRENS LAW." 305 vested tights shall be subjected to an adjudication in a court of competent jurisdiction, upon due notice, in order that the true state of the title may be ascertained and declared, and that thereafter, the tenure of the owner, the right of transfer and incumbrance, and all rights subsequently accruing, shall be de- termined in accordance with the rules now prescribed. A state may, by statute, prescribe the remedies to be pursued in her courts, and may regulate the disposition of the property of her citizens by descent, devise or alienation.^ The right of owner- ship which an individual may acquire must therefore, in theory at least, be held to be derived from the state, and the state has the right and power to stipulate the conditions and terms upon which the land may be held by individuals."^ "The power of the state to regulate the tenure of real property within her limits, and the modes of its acquisition and transfer, and the rules of its descent, and the extent to which a testamentary disposition of it may be exercised by its owners, is undoubted. ' '^ "The power of the legislature in this respect (as to changing the rules of evidence as to the burden of proof), whether affect- ing proof of existing rights or as applicable to rights subse- quently acquired or to future litigation, so long as the rules of evidence sought to be established are impartial and uniform in their application, is practically unrestricted."^ 381. The applicant must prove title as against all the world. The applicant proceeds under the act as in chancery, and the rules of such courts are always applicable.'''^ The applicant for registration must establish, that the true title in fee is in him before he can have relief or require those whom he has brought before the court as defendants to bring their titles for adjudica- tion. If the applicant does not prove such title as is entitled to 3—3 Washburn on Real Prop- 5— Arndt v. Griggs, 134 U. S. erty, 4th ed.. p. 187, and authori- 316-321 and authorities cited, ties cited in notes. 6— Gage v. Caraher, 125 111. 447- 4 — Tiedman on Real Property, 455. 2nd ed., sec. 19, and case cited. 7— Gage v. Consumers' Electric Light Co., 194 111. 34; 20 306 THE LAW OF ESTATES. be registered as a title in fee he cannot have relief, either in the way of registration of his own title or a declaration finding that the adverse claimants have no title, or that the claims of the adverse claimants are clouds on such prima facie title as the applicant may be able to show in bills to remove clouds from title.^ It was not the design of the act that a mere prima facie title should be registered as an absolute title in fee simple. The applicant for initial registration of title in fee simple asserts that he is the owner of such title as against all the world and undertakes to establish it.'^ But in the case of Glos v. Mickow^^ proof of possession of land under claim and color of title made in good faith, coupled "with payment of taxes upon the property for a period of seven successive years, held, sufficient in the absence of any other evidence to authorize registration of title. Failure to make the husband and heirs of a deceased sister of the applicant parties to an application to register title, does not defeat the right to registration; where the interest of the deceased sister was barred before her death by the 20 year stat- ute of limitations. A defendant to an application for registra- tion of title cannot complain that the decree was entered without sufficient service by publication as to certain persons made de- fendants, when the latter were defaulted and do not complain of the decree.i^ But a party relying upon adverse title to defeat initial title applied for must establish it. And under certain circumstances the applicant must show title from the govern- ment.^ - 382. The relation of the examiner under the act, that of master to the court. The relation of the examiner to the court as created by the act, is that of a master in chancery as in other 8 — Glos V. Kingman & Co., 207 of Chicago v. Middlebrooke, 143 111. 26. 111. 265. 9— Glos V. Cessna, 207 111. 69; 11— McLaughlin v. Covel, 222 Glos V. Kingman & Co., 207 111. 26; III. 162. Glos V. Holberg, 220 111. 167. 12— Glos v. Halberg, 220 111. 167. 10 — 211 111. 117; see also, City 13 — Gage v. Consumers' Electric Light Co., 194 111. 34. LAND TITLES— "TORRENS' LAW." 307 proceedings, and if no objections are made to the sufficiency of the applicant's evidence by exceptions to the examiner's report, such objection is waived.^^ An objection to the report of an examiner of titles is in the nature of a special demurrer, and such must point out the grounds of the objection with clearness and certainty.^^ The rule in chancery proceedings, such as the court has declared the application for initial registration of title to be, applies alike to examiners of title and masters of court. The rule in equity requires the party who may desire to have the court revise the rulings of the master as to the admission or rejection of evidence, to file objections to the master's report before it is returned into court; pointing out the grounds with reasonable certainty; then, if the master still adheres to his ruling and report, and returns it into court, the party object- ing may then file his exceptions to the report, corresponding with the objections made before the master, upon the hearing of which the whole, or such part of the evidence as may be material, will be brought forward and be subject to review by the court.15 On the hearing before the examiner, under this act, the introduction in evidence of an abstract of title show- ing the records of conveyances, which were indispensable links in petitioner's chain of title, without requiring any preliminary proof which might render the abstract admissible as secondary evidence was error. In such ease proof should be made that the original deeds had been lost or destroyed by fire or other- wise, and that the abstract of title had been made in the ordinary course of business, so that proof so made be brought within sec- tions (1) 23 or 24 of chapter 116, entitled "Records Destroyed" or within the provisions of (2) section 36, chapter 30, entitled "Conveyances."^'^ 14— Glos V. Hoban, 212 111. 222. Vol. 3, pp. 335S, 3359; Vol. 4, p. 15 — Hurd V. Goodrich, 59 111. 1073, and cases cited under sec- 450; Glos v. Hallowell, 190 111. 65. tions 23 and 24, chapter 116, en- 16 — Glos V. Hallowell, 190 111.65; titled "Records Destroyed"; Kurd's (1) Starr & Curtis Annotated R. S. of 111., 1905, same sections Statutes of Illinois, with Jones & and chapter, p. 1626. (2) Starr & Addington's Supplements thereto, Curtis Annotated Statutes of Illi- 308 THE LAW OP ESTATES. As it has been held, that sections 7 and 18 of the Torrens Land Title Law, has never been legally adopted in Cook County, it is essential to make preliminary proof in proceedings to register title, under the provisions of section 24 of the Records Act.^'^ 383. Application for registration of lands — executors, admin- istrators and trustees required to make application unless ex- cused by the Probate Court in case of hardship. An act to amend sections seven (7) and eighteen (18) of an act entitled, *'An act concerning land title," approved and in force May 1, 1897, approved May 18, 1903. In force July 1, 1903, as follows : "Sec. 7. The owner of any estate or interest in land, whether legal or equitable, may apply, as hereinafter mentioned, to have his title regist-ered. He may apply in person or by an attorney in fact authorized so to do; a corporation may apply by its authorized agent; an infant by his natural or legal guardian; any other person, under disability, by his legal guardian. Ex- cept in applications by executors and administrators the person in whose behalf the application is made shall be named as ap- plicant. It shall be the duty of all executors and administrators, appointed after the adoption of this act and trustees holding ^itle or power of sale under wills admitted to probate after that date to apply within six months after their appointment, to have registered the titles to all non-registered estates and inter- nois, with Jones & Addington's Starr & Curtis Annotated Statutes Supplements thereto, Vol. 1, pp. of Illinois, with Jones & Adding- 955, 956; Vol. 4, p. 258; Vol. 5, p. ton's Supplements thereto. Vol. 3, 119, and cases cited under section p. 3361; Vol. 4, p. 1073, and cases 36, chapter 30. entitled "Convey- cited under sections of statute; ances"; Kurd's R. S. of 111., 1905, Kurd's R. S. of 111. 1905, pp. 473, same section and chapter, p. 470; see also. Messenger v. Messenger, see also, Glos v. Cessna, 207 111. 223 111. 282; sections 7 and 18 Tor- 69; Glos V. Talcott, 213 111. 81. reus Land Title Act, Chapter 30. 17 — Post 384; sec. 7, 18, Chapter "Conveyances." Starr & Curtis 30, entitled "Conveyance," an act Statutes etc., Vol. 4, pp. 260, 263; concerning land titles; sec. 24, Kurd's R. S. of 111. 1905, pp. 473, chapter 116, "Records Destroyed"; 475; Karvey v. County of Cook, 221 111. 76. LAND TITLES— "TORRENS LAW." 309 ests in land (situated in any county in which this act at the time is in force), which the several decedents they represent might have registered in their lifetime in their own right. Such appli- cation shall set forth the names and addresses of the persons entitled to the estate or interest sought to be registered, and any such person not joining in the application shall be made a de- fendant. The court, in its final decree, in addition to what is provided in the subsequent sections of this act, shall determine the several titles and interests of the persons claiming under the decedent, and declare the same, and decree in whom regis- tration shall be made. Land so registered shall be subject to be sold for the debts of the estate of the decedent, as now pro- vided by law. Provided that the court of probate jurisdiction, of the county in which the land is situated, in cases where regis- tration may appear to be a hardship, may, by an order entered of record, excuse such application for registration as to the whole or any part of the land. 384, Application to be referred to examiner — proceedings of. Sec. 18. Immediately upon the filing of the application, an order may be entered referring the same to one of the examiners of title appointed by the registrar, who shall proceed to examine into the title and into the truth of the matter set forth in the ap- plication, and particularly whether the land is occupied, the nature of the occupation, if occupied, and by what right, and make report in writing to the court, the substance of the proof and his conclusions therefrom. He shall have power to admin- ister oaths and examine witnesses, and may at any time apply to the court for directions in any matter concerning his inves- tigation. The examiner may receive in evidence any abstract of title or certified copy thereof, made in the ordinary course of business by makers of abstracts ; but the same shall not be held as more than prima facie evidence of title, and any part or parts thereof may be controverted by other competent proof;<. He shall not be required to report to the court the evidence submitted to him except upon the request of some party to the proceeding, or by the direction of the court. No report shall 310 THE LAW OF ESTATES. be made upon such application until after the expiration of the time specified in the notice hereinafter provided for the appear- ance of the defendants, and in ease of such appearance, until opportunity is given to such defendant to contest the rights of the applicant in such manner as shall be allowed by the court.^^ 385. Submission of question as to adoption of act. Section 2. The provisions of this act shall not apply to land in any county, where the act of which this act is an amendment has been adopted, until this act shall have been adopted by a vote of the people of the county at an election to be held on the Tues- day next after the first ]\Ionday in November, or any election for the election of judges of the year in which the question is submitted. The question may be submitted in the following manner:- In any county of the first or second class, as the same are classified in the act concerning- fees and salaries, on the petition of not less than one-half of the legal voters, to be ascer- tained by the vote cast at the last preceding election for county officers, or in any county of the third class upon petition of not less than twenty-five hundred (2,500) legal voters praying the submission of the question of the adoption of this act, the clerk shall give notice that such question will be submitted at such election and shall cause to be printed at the top of the ballots to be used for said election : I For extension of the Torrens land title system Against extension of the Torrens land title svstem The votes cast upon that question shall be counted, canvassed and returned as in the case of the election of county officers. If the majority of the votes cast on that subject shall be for extension of the Torrens land title system, this act shall there- after be in force and appty to lands in that county. If the ma- jority of the first submission is not in favor of such extension, the question shall not be again submitted before the second year thereafter. 18— See Ante 382. LAND TITLES— "TORRENS LAW." 311 Note. — Since the passage of this amended act, and at the spring election of 1904, the Torrens system was submitted for vote of the people of Cook County, Illinois. The vote was largely for the extension of the Torrens system, but for defects in the submission, the vote of the people at such election, failed legally to express the intention of the law. No steps up to this time have therefore been taken by the court of probate to put the act in operation in any estate pending in that court.^^ 19— Harvey v. County of Cook, 221 111. 76. CHAPTER XVII ADMINISTRATION Sec. 386. Necessity of administration. 387. Different administrators de- fined. 388. Domiciliary and ancillary ad- ministrators. 389. Administrator pro tern. Sec. 390. Administrator de bonis non or with will annexed. 391. Administrators to collect. 392. Administrators de son tort. 393. Public administrators. Sec. 386, Necessity of administration. It is undoubtedly the best and safest practice, that estates of deceased persons be settled by proper administration. This is not always done, for the law does not make it indispensable that every estate shall be administered, merely for the sake of administration. In some instances the distributees have made settlements of estates between themselves, and such settlements have been sanctioned and ratified by the courts. Where a wife died without children or descendants, leaving her surviving a husband, who took pos- session of a part of his deceased wife's property and allowed his wife's mother to have the remainder of it, there being no debts of any kind to be paid. It was held, that in such case administra- tion would not be granted to the husband solely to enforce his bare legal title to that part of his wife's estate which her mother had taken; she being in equity entitled to it by virtue of a settle- ment made between herself and said surviving husband.^ Where the husband, the sole heir of his deceased wife as to her per- sonal estate, has paid all her debts and liabilities, and as such heir, having possession of all her personal estate, makes a vol- 1— Abbott V. People, 10 111. App. 62; and see also in support of the doctrine in this case the following: Harrington v. Lawman, 47 N. Y. Sup. Ct. 868; Elliott v. Lewis, 3 Edw. Ch. 40; Bogert v. Furman, 10 Paige 496; Estate of Wagner, 119 N. Y. 28. 312 ADMINISTRATION. 313 untary disposition of promissory notes payable to his wife, no administration is necessary to collect the notes; and, if ap- pointed the administrator will not be entitled, as a matter of right, to have the husband's equitable assignee surrender such notes to him merely to collect them and charge his commissions on the amount when collected.^ No administration is necessary to vest decedent's title in next of kin, where the decedent died in infancy incapable of contracting debts.^ The Statute of Illinois providing that title to property vests in the heirs of an intestate after payment of just debts, does not dispense with the necessity of administration, so as to allow the heirs of such intestate to sue directly in their own names for the recovery of the assets.^ It is as proper to appoint an administrator for the collection of debts, as for the sale of lands. ^ It is also necessary where a creditor charges insolvency and fraudulent conveyance by a deceased in his bill in equity asking for a receiver to take out administration; equity will not entertain a bill by such creditor where no administration has been had on the estate of a deceased person.® So where the plaintiff died pending an action by him to recover coal mined and removed from his land by the defendant company, who converted the same to its own use, it was held: The widow of decedent, as his sole devisee and legatee under his will, could not on her own suggestion be sub- 2— McKee v. Abbott, 105 111. 592- 4— Leamon v. McCubbin, 82 111. 593; Dixon v. Buell, 21 111. 203; 263; sections 42-43, chapter 3, en- Lewis V. Lyons, 13 111. 117; Dor- titled "Administration of Estates," man v. Tost, 13 111. 27; Fitzgerald Starr & Curtis Annotated Statutes V. Clancy, 49 111. 465; Leamon v. of Illinois, with Jones & Adding- McCubbin, 82 111. 263; Cross v. ton's Supplements thereto. Vol. 1, Carey, 25 111. 562. The latter case pp. 286, 287, and case cited under holding, if there are no debts, the sections of statute noted; Kurd's sole heir may sell personal prop- R. S. of III. 1905, same sections erty without taking out adminis- and chapter, p. 112. tration. 5— Walker v. Walker, 55 111. 3— Lynch v. Rotan, 39 111. 14; App. 118. Von Giessen v. Bridgford, 83 N. Y. 6— Goodman v. Koppert, 1G9 111. 348. 136. 314 THE LAW OF ESTATES. stituted as a party plaintiff in such action, without first obtain- ing letters of administration on the estate of her deceased hus- band.^ Courts of Probate alone have power to appoint adminis- trator.s 387. Different administrators defined. Foreign representa- tives of deceased persons' estates are usually termed non-resi- dent executors and administrators. Suits by such are subject to the same rules of pleading as those by domestic representa- tives. Such may appear in the courts of Illinois and defend the interests of their estates. They may under section 42 of Chapter 3, entitled ''Administration of Estates," appear in any court in any way in which it becomes necessary for them to properly prosecute or enforce any claim of estates testate or intestate.^ The letters of such may be proved under the Act of Congress as provided by the Statute of Illinois.^^ Under sections 42 and 43 of the Administration act {ante, 336) there may be an executor in a foreign state and an administrator with the will annexed in this State.^^ Administration is properly granted on the estate of a non-resident owner of lands in the county of this State where the lands or some part thereof are situated.^^ 388. Domiciliary and ancillary administrators defined. Where a decedent at the time of his death was a resident of the State of Illinois, and administration was granted in this State, 7— McLean County Coal Co. v. Union R. & T. Co. v. Shacklett, 119 Long, 91 111. 617. 111. 232; Hickox v. Frank, 102 111. 8— Leddicoat T. Treglorm, 6 660. Colo. 47. - 11— Sec. 42 and 43, chapter 3, 9 — Collins V, Ayers, 13 111. 358; "Administration of Estates," Starr Decker v. Patton, 20 111. App. 210; & Curtis Annotated Statutes of 111., sec. 42, chapter 3, "Administration Vol. 1, pp. 286, 287; Kurd's R. S. of Estates," Starr & Curtis An- of 111. 1905, p. 112; Branch v. Ran- notated Statutes of Illinois, Vol, 1, kin, 108 111. 444. p. 286, and cases cited under sec- 12 — Bowles v. Rouse, 3 Gilm. tion of statutes noted; Kurd's R. (111.) 409; section 18, chapter 3, S. of 111. 1905, p. 112. See also "Administration of Estates," as (ante 386 of this work). amended May 12, 1905. In force 10— Collins V. Ayers, 13 111. 358; July 1, 1905. Kurd's Statutes of 111., 1905, p. 107. ADMINISTRATION. 315 such administration will be considered and treated as the prin- cipal administration; and that granted to the same adminis- trator in another State the ancillary administration.^^ When a person dies testate in another state, it is, where the proceeding is regular, proper to appoint an administrator in this state with the will annexed for the purpose of local administration.^'* 389. Administrator pro tem. An administrator pro tern should be appointed to sue vrhcre the administrator inventories debts from himself to the estate, but denies his 1 lability.^ •'^ And see the following cases treating the subject of such administra- tion when and how granted. The time of holding such office and the rights, duties and liabilities of such.^^ 390. Administrator de bonis non or with will annexed. Where it appears that a person, at the time of his death, ovv^ned land which was not inventoried or accounted for by his admin- istratrix, letters of administration de bonis non will be granted on the petition of a creditor made after the discharge of the ad- ministratrix.i '^ Administrators with the will annexed are usually appointed and authorized to perform any act in the execution of the will and left unperformed by the executor. But it is very essential that such administrator, have the aid and assistance of the court in the performance of the duties un- finished by the executor formerly acting under the powers in the will solely bestowed on him as such. The words used in section 37, Chapter 3, of the Administration act.^^ *'If there is any thing remaining to be performed in the execution of the 13— Ramsey v. Ramsey, 196 III. Matter of Eddy, 26 Weekly Dig. 179. 141; Matthews v. American Cen- 14— Walker v. Walker, 55 111. tral Ins. Co., 41 N. Y. Sup. Ct. 304. App. 118. 17— Tillson v. Ward, 46 App. 179; 15 — May v. Lighty, 26 111. App. Casoni v. Jerome, 58 N. Y. 315. 17. 18— Section 37, chapter 3, "Ad- 16 — Saw Mill Co. v. Dock, 3 ministration of Estates." Starr & Dem. Surr. 55; Estate of Dock, 7 Curtis Annotated Statutes of Illi- Civ. Proc. (Browne) 237; West v. nois, Vol. 1, p. 284, and cases cited Maples, 14 Weekly Dig. 92; Weed under section. Kurd's R. S. of 111., V. Waterbury, 5 Redf. Surr. 114; 1905, p. 111. 316 THE LAW OF ESTATES. will," does not authorize such administrator to execute a power of sale in the will ; these words mean something to be performed as executor, and do not extend to anything to be done as agent or trustee under a power to sell land.^^ 19— Nicoll V. Scott, 99 111, 536; Hall V. Irwin, 2 Gilm. (111.) 176; see the following cases, where acts have been performed by adminis- trators, and have been sanctioned by the courts, as within the gen- eral powers of such. Newhall v. Turney, 14 111. 338, it is held: The powers of an administrator de bonis non, extend only to the recovery of such goods and chat- tels of the intestate as remains un- administered in specie, and to debts due the intestate which re- main unpaid. But his authority does not extend to assets already administered. Such cannot call upon a former administrator, nor upon his personal representatives, to account for any part of the estates sold, converted, or wasted by him. But the creditors or the distributees may. Rowan v. Kirk- patrick, 14 111. 1, holds in harmony with former case cited: But it is held the distributees or creditors of the first intestate should prose- cute the representatives of the first administrator, for any waste or misapplication of assets. DuflBn V. Abbott, 48 111. 17. In this case the former decisions are overruled so far as in conflict with this deci- sion rendered after statute sec. 39, chapt. 3, "Administration of Estates" was passed in 1845, and see also sec. 13, chapter 103, "Of- ficial Bonds," (1) Kurd's R. S. of 111., p. Ill; (2) p. 1419: In the Duffin case, it was held under the statute, then in force and now for that matter, an administrator de bonis non, has the authority to call upon a former administrator, whose letters have been revoked, to account fully for his adminis- tration of the estate. In Bostwick v. Skinner, 80 111. 147, it is held: When a petition is filed in the county court, for leave to sell real estate, one of the questions pre- sented for adjudication by the court is, whether the petitioner is administrator, and if the court de- crees in accordance with the prayer of the petition, the presumption is that the proof was sufficient. In Hanifan v. Needles it is held to be a rule of the common law that the powers and the duties of an administrator de bonis non are limited to the administration of such property belonging to the decedent's estate as has not al- ready been administered upon by the former executor or adminis- trator. And when such is appoint- ed to fill a vacancy caused by the removal of an executor or admin- istrator, he may maintain any ap- propriate action or proceeding against such removed executor or administrator, for any waste, mis- management or breach of duty in respect to the estate during the administration of the latter, but not so where the vacancy was caused by death. In such case, the heirs, dev- isees or creditors alone can main- tain the action. In the case of ADMINISTRATION. 317 391. Administrators to collect. In a contest of a will, the court of probate may, on the application of the widow stating that her award had not been set out to her, and that the assets of the estate are in danger of being lost pending the appeal of such contest, appoint administrator to collect.^o Administrator to collect has no power to make disburse- ments. ^^ And cannot make investments for he has no such power.-2 And such administrator cannot receive before ma- turity the payment of notes.^s 392. Administrators de son tort. Where one not the execu- tor or administrator of a deceased person, assumes to act as such, or appropriates the goods or property of the deceased to his o^n use, he renders himself liable as executor or adminis- trator de son tort.^* Keplinger v. Keplinger, 172 111. 449, the rule that the administra- tor of a deceased executor does not succeed to the estate of the deceased executor is universally settled. And the common law rule, that a sole executor may transmit to his executor the administration of the estate of his testator, has no application in a case where the original testator designated in his will, a person to succeed as execu- tor in case of the death of the person named to execute the will. See also, Woerner's Am. Law of Administration, p. 394; 2 Black- stone's Com. 506; Roanoke Navi- gation Co. V. Green, 3 Dev. L. 434; see also the following cases in point of matter in text: Neiniger V. Fietsam, 29 111. App. 648; Huff- man V. People, 78 111. App. 355; Holden v. Piper, 5 Colo. Ct. of App. 71. The following cases hold, in the particular proceeding had, and the facts governing the cases, that it is improper to appoint such ad- ministrator, for the purpose sought: Grafferwreid v. Kundert, 34 111. App. 483; Matter of Curtis, 37 N. Y. Sup. Ct. 586. 20— Schenck v. Schenck, 80 HI. App. 613; sections 11 to 17, chapt, 3, "Administration of Estates," Starr & Curtis Annotated Statutes of Illinois, Vol. 1, pp. 272, 273, 274; Kurd's R. S. of 111., 1905, pp. 106, 107. 21 — In re Estate of Wincox, 186 111. 454. 22— People v. Solomon, 184 111. 499. 23— 7n re Estate of Wincox, 186 111. 454. 24— Trutt V. Cummons, 6 III. App. 73; Camp. v. Elliott. 38 111. App. 337; Bradford v. Bennett, 48 111. App. 145; Rohn v. Rohn. 204 111. 184; Same v. Same, 98 111. App. 509; Truesdell v. Burke, 145 N. Y. 612. 318 THE LAW OF ESTATES. 393. Public administrators. Are created by statute and ap- pointed by the Governor of the State of Illinois. Chapter III of this work, ** Public Administrators." When given the ad- ministration of an estate by the courts of probate, they are held to the same powers and duties as other administrators. Their appointment is made where special conditions and circum- stances specified by the statute of the state arise when they seek the administration of an estate.^^ 25— Sections 18, 44 to 50, chap- 107, 112, 113; Brand v. Rankin, ter 3, "Administration of Estates," 108 111. 444; Heirs of Langworthy Starr & Curtis Annotated Statutes v. Baker, 23 HI. 484. of Illinois, with Jones & Adding- Note. — As the several kinds of ton's Supplements thereto. Vol. 1, administrators, their powers and pp. 287, 288, 289; Vol. 4, p. 32; Vol. duties, come in natural order 5, p. 16, and cases cited under sec- throughout this work, we shall in tions of statute noted in each vol- the order of procedure consider ume; Kurd's R. S. of 111. 1905, pp. such, with their legal powers and duties. CHAPTER XVIII ADMINISTRATION-CONTINUED Sec. 394. Preliminary remarks. 395. Granting letters testamentary or of administration. 396. Executor's duty and custodi- an's duty to present will. 397. Age and qualification of ex- ecutors. 398. Executor's power and liability before probate of will. 399. Death, failure of part of ex- ecutors to qualify. Sec. 400. Oath of executor or adminis- trator. 401. Bond of executor or adminis- trator with the will an- nexed. 402. When security not required. 403. Removal of executors or ad- ministrators to different, county. 404. The form of letters testa- mentary. Sec. 394. Preliminary remarks. The owner of real, per- sonal and mixed property, may, by last will and testament nominate and empower some person or corporation, such as a trust company, qualified by law, to administer his or her estate after death. As a general rule whatever the testator clearly di- rects to be done with his property and the proceeds thereof, when not in conflict with the well established rules of law, will be carried out by the executors authorized by the will or by the administrator with the will annexed, by aid and assistance of the courts of probate, or other courts of law and equity, to whom it may be necessary to apply for a full and complete ad- ministration of an estate, or to carry out the imposed conditions of a testator's will. The duties imposed by any testator or tes- tatrix upon those authorized to act for them after death, are always subject to lawful duties imposed by statiTte law and con- nected with the office of executor or administrator when ac- cepted. Such officers are required to collect all available assets of the estate they administer; account for all property coming to their hands, or within their knowledge belonging to the estate 319 320 THE LAW OF ESTATES. in their charge. They must pay all debts sanctioned by law or allowed by the court administering the estate, out of the pro- ceeds of such estate, with the costs of administration; or, such portion of the proper debts as the assets of an estate will per- mit. Such officers must settle their accounts with the estate, as often as called upon by times fixed by statute and as much oft- ener as the court administering the estate may require ; and such account or accounts must be approved by the court as the statute directs. And such officere must perform other numerous duties required by the statute law, of necessity arising during the administration of an estate. The duty of the administrator is similar to that of an executor, though the executor has powers under the will which in many cases cannot be delegated to an administrator even with the will annexed. 395. Granting letters testamentaiy or of administration. Section 1 of Chapter 3, entitled, "Administration of Estates," provides : ' ' That when a will has been duly proved and allowed, the County Court shall issue letters testamentary thereon to the executor named in such will, if he is legally competent and ac- cepts the trust, and gives bond to discharge the same ; and when there is no executor named in such will, or the executor named therein dies, refuses to act, or is otherwise disqualified, the court shall commit the administration of the estate unto the widow, surviving husband, next of kin, or creditor, the same as if the testate had died intestate. In all cases copies of the will shall go out with the letters. "^ The courts of probate are always open for the purpose of granting letters testamentary or of administration.^ In vacation the clerk of the County Court (or Probate Court), may grant letters testamentary or of administration, subject 1 — Starr & Curtis Annotated bate Court Act, part of chapter Statutes of Illinois, Vol. 1, p. 269; noted. Starr & Curtis Annotated Kurd's R. S. of 111., 1905, p. 104. Statutes of Illinois, Vol. 1, pp. 2— Sections 6, chapter 37, 1178, 1196; Kurd's R. S. of 111., "Courts," County Court Act, Pro- 1905, same section and chapter, pp. 618. 627. ADMINISTRATION— CONTINUED. 321 always to the approval or disapproval of such court at its next regular term.* "A creditor cannot be appointed until sixty days after re- fusal by widow and next of iiin to serve. Other persons cannot be appointed until after fifteen days from expiration of such sixty days.^ A judgment creditor holding foreign judgment against decedent at his death, must in the absence of other administration, take out administration within time allowed by general statute of limitations for action on his claim, or his claim will be totally barred.^ A creditor living in this state, will be preferred to public administrator, in the matter of appointing of administrator of the estate of an intestate who died without the state.^ And in a case where letters of administration were issued more than seven years after intestate 's death, it was held : Such should be issued only upon proof of facts preventing earlier application.''^ The grant of letters by a clerk is a minis- terial act, which may be reviewed in a collateral proceeding.^ But the regularity of the appointment of an administrator can- not be questioned generally in a collateral proceeding.^ And so if the court shall erroneously appoint other persons, than widow, next of kin or creditor, such appointment cannot be attacked in a collateral proceeding.^*' 396. Executor's duty and custodian's duty to present will. Section 2, Chapter 3, entitled, ''Administration of Estates," provides : "It shall be the duty of any person, knowing that he is named or is appointed as the executor of the last will and tes- 3— Section 23, chapter 25, 7— Fitzgerald v. Clancy, 49 III. "Clerks of Courts." Starr & Curtis 465. Annotated Statutes of Illinois, Vol. 8 — Illinois Central Ry. Co. v. 1, p. 893; Kurd's R. S. of 111., 1905, Cragin, 71 111. 177. same section and chapter, p. 457. 9 — Hobson v. Ewen, 62 111. 146; 4— Schnell v. Chicago, 38 111. Duffin v. Abbott, 48 111. 17; Wright 382. V. Wallbaum, 39 111. 554; Schnell 5 — Baker v. Brown, 18 111. 91. v. Chicago, 38 111. 382. 6 — Rosenthal v. Prussing, 108 10 — Schnell v. Chicago. 38 111. 111. 128. 382; Unknown Heirs of Lang- worthy V. Baker, 23 111. 484. 21 322 THE LAW OF ESTATES. tament of any person deceased, within thirty days next after the decease of the testator, to cause such will to be proved and re- corded in the proper county; or to present the will and declare his refusal to accept of the executorship, "^i "Any person or persons who may have in his or her posses- sion any last will or testament of another, for safe keeping or otherwise, shall, immediately upon the death of the testator or testatrix, deliver up said will to the County Court of the proper county; and upon a failure or refusal so to do, the County Court may issue attachment, and compel the production of the same," etc.^^ 397. Age and qualification of executors. Section 3 of the Administration Act provides as follows: "Persons of the age of seventeen years, of sound mind and memory, may be ap- pointed executors; but when a person appointed executor is, at the time of proving the will, under the age of twenty-one years, or of unsound mind, or convicted of any crime rendering him infamous, administration with the will annexed may be granted during his minority or other disability, unless there is another executor who accepts the trust, in which case the estate shall be administered by such other executor until the minor arrives at full age or the other disability is removed, when, upon giving bond as in other cases, he may be admitted as joint execu- tor with the former. When a married woman is executrix, her husband may give bond with her for her faithful performance of the trust as in other cases. "^^ 398. Executor's power and liability before probate of will. Section 4 of the Administration act, is as follows : ' ' The power 11— Starr & Curtis Annotated Kurd's R. S. of 111., 1905, same Statutes of Illinois, Vol. 1, pp. 269, section and chapter, p. 2052. 270; Kurd's R. S. of 111., 1905, p. 13— Section 3, chapter 3, "Ad- 104. Kesterberg v. Clark, 166. 245. ministration of Estates." Starr & 12 — Sectirn 12, chapter 148, Curtis Annotated Statutes of Illi- "Wills." Starr & Curtis Annotated nois, Vol. 1, p. 270; Kurd's R. S. Statutes of Illinois, Vol. 3, p. 4041; of III., 1905, p. 104. ADMINISTRATION— CONTINUED. 323 of the executor over the testator's estate, before probate of the will and obtaining letters testamentary, shall extend to the burial of the deceased, the payment of the necessary funeral charges, and the taking care of the estate; but in all such cases if the will is rejected when presented for probate, and such ex- ecutor thereby never qualifies, he shall not be liable as an execu- tor of his own wrong, unless upon refusal to deliver up the estate to the person authorized to receive the same. Provided, that this section shall not be construed to exempt any person, claiming to be executor as aforesaid, for any waste or misappli- cation of such estate."^* Under the statute law of Indiana, similar to that of Illinois, it was held : That a person named as executor in a will, who had never taken out letters testamentary, had no power as executor under such appointment by will to release a mortgage of real estate, ^^ And where a testator died leaving a large estate ; and under his will, the personal estate, after the payment of debts, etc., was bequeathed to his children. The widow of the testator received and took one United States government six per cent bond of the denomination of $1,000, belonging to the estate and never accounted for the same. By bill in equity, the com- plainant, a son of the testator, sought to recover the amount of said bond. It appeared from the evidence, that the complainant had, by assignments, acquired the interests of the other legatees in and to the personal estate, and that the executor had settled the estate, and this bond taken by the widow was not needed to pay debts. The defendant set up the defense, that the bond had been applied by the defendant in part payment of a promissory note for $1,500 which had been given by the testator in his lifetime, to one M, The widow being named as executrix had never qualified as such, and therefore she stood as to her acts, an executrix de son tort. Held: That under the well 14— Section 4, chapter 3, "Ad- nois, Vol. 1, p, 270; Kurd's R. S, ministration of Estates." Starr & of III., 1905, p. 104. Curtis Annotated Statutes of Illi- 15— Wall v. Bissell, 125 U. S, 382. 324 THE LAW OF ESTATES. settled doctrine, an executor de son tort of a solvent estate may discharge himself, even against the demand of the rightful executor, by proving debts paid to the amount of the goods received which had belonged to the deceased.^^ In a proceed- ing against an executor dc son tort, the declaration should charge him as executor generally. But if such executor de son tort subsequent to the act charged, has been granted letters of administration, he is thereby relieved of tortious liability.^ '^ But the executor binds himself personally, unless he obtains agreements with the persons with whom he deals or makes con- tracts to look to the funds of the estate which he represents ; and this, notwithstanding the power of the executor to make agree- ments that will hold the estate liable.^ ^ 399. Death — failure of part of executors to qualify. Section 5 of the Administration act is as follows : ' ' Where two or more executors are appointed in and by the same will, and one or more of them dies, refuses to take upon himself the executorship, or is otherwise disqualified, letters testamentary shall be granted thereon to the other person or persons so named, not renouncing as aforesaid, and not disqualified. "^^ 400. Oath of executor or administrator. As to form and detail is set forth by section 6 of the Administration act as fol- lows: "Every executor or administrator with the will annexed, shall, at the time of proving the will and granting letters testa- mentary, or of administration, take and subscribe the following oath, to-wit: (at large set forth). Which said oath shall be ad- 16 — McConnell v. McConnell, 94 tion 25, 97 chapter 3, "Admiuistra- 111. 295; Weeks v. Gibbs, 9 Mass. tion of Estates." Starr & Curtis 72; Beagon v. Long, 21 Ind. 264; Annotated Statutes of Illinois, Tobey v. Miller, 54 Me., 480; Wil- Vol 1, pp. 270, 280, 320; Kurd's liams on Executors, 267. R. S. of 111. 1905, pp. 104, 109, 121; 17— Moore v. Wright, 4 111. App. Clinefelter v. Clinefelter, 16 111. 443. 329; Wisdom V. Becker, 52 111. 342; 18— Miller v. Didisheim, 95 111. Stoff v. McGinn, 178 111. 55; Ward- App. 322, and cases cited. well v. McDowell, 31 111. 364. 19— R. S. 1845, p. 541; see sec- ADMINISTRATION— CONTINUED. 325 ministered by the clerk of the County Court, and be attached to and form a part of the probate of said will.''^** 401. Bond of executor and administrators with the will an- nexed. Section 7 of the administration act is as follows: "All executors hereafter appointed, imless the testator shall other- wise direct in the will, and all administrators with the will an- nexed, shall, before entering upon their duties, enter into bond, with good and sufficient security, to be approved by the Coimty Court, and in counties having a Probate Court, by the Probate Court, in a sum double the value of the personal estate, and pay- able to the People of the State of Illinois, for the use of the parties interested, in the following form, to- wit: (form set forth). Which said bond shall be signed and sealed by the said executor (or administrator), and his securities, and filed in the office of the clerk of the County Court, or office of the clerk of the Probate Court in counties having a Probate Court, and spread upon the records; and that where it becomes neces- sary to sell the real estate of any intestate, for the payment of debts against his estate, under the provisions of this act, or in case real estate is to be sold under any provisions of a will, the court shall require the executor (or administrator), to give further and additional bond, with good and sufficient security, to be approved by the court, in a sum double the value of the real estate of the decedent sought to be sold, and payable to the People of the State of Illinois, for the use of the parties inter- ested, in the form above prescribed. 21 In a suit on bond, the People may sue for use of several plain- tiffs, for all damages sustained without reference to use to be 20— R. S. 1845, p. 541; sec. 6 1881. Laws of 1881, p. 1. See also chapter 3, "Administration, of section 1, chapter 103, "Official Estates." Starr & Curtis Anno- Bonds." Section 25, chapter 3, tated Statutes of Illinois, Vol. 1, p. 'Administration of Estates." Starr 271; Kurd's R. S. of 111., 1905, p. & Curtis Annotated Statutes of 105. Illinois, Vol. 1, pp. 271, 280; Vol. 21 — As amended by act approved 2, p. 2831; Kurd's R. S. of 111., May 30, 1881. In force July 1, 1905, pp. 105, 109, 1417. 326 THE LAW OF ESTATES. made of moneys recovered. ^^ Several actions are maintainable on executor's bond.^^ The judgment on bond may be for dam- ages sustained and not for penalty of bond.^* A debt may be maintained on bond by creditors holding judgment against ad- ministrator though claim never had been allowed by or pre- sented to Probate Court.^s The bond required to be given to secure the proceeds of the sale of land by an executor, which is authorized to be sold by the terms of the will or by the decree of the court, must be given as a separate and independent bond to secure such fund, regardless of the fact whether the land lies within or outside the State of Illinois. "^^ There appears to be much conflict in authorities over the question, whether the sale of real estate under the provisions of a will or under a decree of court, without first giving a bond as provided by the last clause of section 7 of the Administration act, would be null and void. In the case of Elting v. First National Barik,^'^ the facts of the record show, page 381-382: A decree was en- tered by the County Court for the sale of real estate by the executrix to pay debts; as such she gave no further and addi- tional bond as required by section 7 above; after the sale the executrix made no report thereof to the court as required by section 109 of the same act ; but report was made and confirmed before the next term of court; the sale being made Avithout giv- ing the full notice required by said section 109. The executrix also, though apparently selling the real estate in question to her brother, really sold to herself. The court in that case reviewing the facts, finds gross mismanagement of the estate and sets the sale aside, saying, page 384: "Where the circumstances are such as appear in this record, creditors, who have reduced their claims to judgment, can file a bill in the proper court to have such a sale set aside." But it is also held, that a general bonds- 22— People v. Stacey, 6 111. App. 25— People v. Allen, 8 111. App. 521. 17. 23— People v. Randolph, 24 111. 26— People v. Hoffman, 182 111. 324. 1190, 409. 24— People v. Summers, 16 111. 27—173 111. 368. 173. ADMINISTRATION— CONTINUED. 327 man is not liable where executor, administrator or guardian is required to discharge special official duties, and for the faithful performance of which they are required to give a special bond, in the absence of any declaration in or provision of a statute, that the general bondsman shall be liable for the faithful dis- charge of the special duty.^s In the case of Frothingham v. Petty, ^^ the question was raised that the sale was void and should be set aside because the bond required by section 7 of the administration act was not given nor required by the order of the county court, the court in its opinion on page 431 say: "We do not fefel w^arranted in holding that the failure of the administrator de bonis non to give such bond would render the sale to Calhoun void.^° "The oversight of the court to require the administrator de bonis non to give a bond was but a mere irregularity and should not defeat the title of appellants, who were not parties to the record and who obtained this land by mesne conveyances from the purchaser at such sale, and who have been in the quiet and peaceful possession of the same for a number of years and expended considerable sums in improvements. ' ' It also appears by the record of that case that the administrator de bonis non faithfully performed the entire duties of his office and applied all the proceeds of the sale of real estate upon the debts of his intestate and fully accounted for the same to the probate court. or administrator to act in all matters concerning the estate. They are the key of authority recognized by banks and all others, 28— People V. Hoffman, 182 111. 123; State v. Johnson, 55 Mo. 80; 390; Board of Supervisors of Mil- United States v. Cheeseman, 3 waukee Co. V. Chilers, 45 Wis. 281; Sawyer, 424; State v. Young, 23 Grumpier v. Governor, 1 Dev. 52; Minn. 551; Henderson v. Coover, Governor v. Barr id. 65; Governor 4 Nev. 429; Lyman v. Conkey, 1 V. Matlock, id. 214; Waters v. Mete, 317; Williams v. Morton, State, 1 Gilm. (111.) 302; Common- 38 Me. 52. wealth v. Toms, 45 Pa. St. 408; 29—197 111. 418. State V. Corey, 16 Ohio St. 17; 30— Drake v. Kinsell, 38 Mich. People V. Moon, 3, Scam. (111.) 232, 328 THE LAW OF ESTATES. 402. When security not required. Section 8 of the admin- istration act is as follows: "When any testator leaves visible estate more than sufficient to pay all his debts, and by will shall direct that his executors shall not be obliged to give security, in that case no security shall be required, unless the county court shall see cause, from its own knowledge, or the suggestions of creditors and legatees, to suspect the executors of fraud, or that the personal estate will not be sufficient to discharge all the debts, in which case such a court may require security, and the same shall be given before or after letters testamentary are granted, notwithstanding any directions to the contrary in the will. "31 403. Removal of executors or administrators to different county. Section 9 of the Administration Act provides; "Whenever, by the division of any county, or the removal of the executor or administrator to whom letters have been granted, he is by such removal or division beyond the limits of the county in which said letters were granted, and in some other county of this state, the county court of the county in which the letters were or are granted shall proceed and settle the estate in the same manner as if no removal or division had occurred. "^^ 404. The form of letters testamentary, as given in section 10 of the Administration Act, should be strictly and fully complied with. These forms are a part of the procedure in a court of probate and cannot be disregarded. They are important in the administration of an estate, being directly prescribed by statute. Such are not only the certificate of office and evidence of qual- ification, but it is upon the strength of such letters, assets of the decedent's estate are collected, or give authority to the executor 31— R. S. of 111. 1845, p. 542; 32— R. S. 1845, p. 542, sections section 8, chapter 3, "Administra- 5 and 30. Chapter 3, "Administra- tion of Estates." Starr & Curtis tion of Estates." Starr & Curtis Annotated Statutes of Illinois, Annotated Statutes of Illinois, Vol. 1, p. 272. sec. 28, p. 282. Same Vol. 1, pp. 272, 282; Kurd's R. S. chapter; Kurd's R. S. of 111. 1905, of 111., 1905, same sections and pp. 105, 109. chapter, pp. 105, 109. ADMINISTRATION— CONTINUED. 329 upon which money of a decedent is paid to an executor or admin- istrator.33 33 — Section 10, chapter 3, "Ad- ministration of Estates." Starr & Curtis Annotated Statutes of Illinois, Vol. 1, p. 272; Kurd's R. S. of 111., 1905, same section and chapter, p. 105. Note. — The various forms pre- scribed by the Statute of Illinois will be found in Vol. 2, giving pre- scribed forms. No reference is necessary to such here, as the foot notes to such forms refer to the section of the statute to which such apply throughout this work. CHAPTER XIX ADMINISTRATORS TO COLLECT Sec. 405. Administrators to collect when appointed. 406. Oath powers as to perishable Sec. goods, right to bring suit, termination of powers of such. Sec. 405. Administrators to collect when appointed. Sec-/^ tion 11 of the administration act is as follows: "During any contest in relation to the probate of any will, testament or codi- cil, before the same is recorded, or until a will which may have once existed, but is destroyed or concealed, is established, and the substance thereof committed to record, with proof there- upon taken, or during any contest in regard to the right of executorship, or to administer the estate of any person dying either testate or intestate, or whenever any other contingency happens which is productive of great delay before letters testa- mentary or of administration can be issued upon the estate of such testator or intestate, to the person or persons having legal preference to the same, the county court may appoint any per- son or persons as administrators, to collect and preserve the estate of any such decedent, until probate of his will, or until administration of his estate is granted, taking bond and secu- rity for the collection of the estate, making an inventory thereof, and safe keeping and delivering up the same when thereunto required by the court, to the proper executor or administrator, whenever they shall be admitted and qualified as such. "^^ An administrator to collect has no authority, independently 34 — Sections 11 and 25, chapter ton's Supplements thereto. Vol. 3. "Administration of Estates." 1; pp. 272, 273, 284; Vol. 4, p. 34; Starr & Curtis Annotated Statutes Kurd's R. S. of 111. same sections of Illinois, with Jones & Adding- and chapter, pp. 106, 110. 330 ADMINISTRATORS TO COLLECT. 331 of his order of appointment, to pay out any money of the estate for any purpose. Such officer has no authority to pay widow's award or claims; he has only power "to collect and preserve the estate of any such decedent, until probate of his will or until administration of his estate is granted." The statutory letters issued to such administrator are to the same effect and confer no other power. (1) The bond required of such is con- ditioned that he shall "deliver to the person or persons author- ized by the court, as executor or administrator to receive the same, all goods, etc.," which shall come to his posses- sion (Section 13 of administration act) ; (2) Section 17 of the same act (3) provides that "on the granting of letters testa- mentary or of administration, the power of such collector so appointed shall cease, and it shall be his duty to deliver, on demand, all property and money of the deceased which shall have come to his hands or possession," etc., to the person or per- sons obtaining such letters; and in case any such collector shall refuse or neglect to deliver over such property or money to his successor when legal demand is made therefor, such person so neglecting or refusing, etc., "shall forfeit all claim to any com- mission for collecting and preserving the estate. "^^ In re Estate of Wincox,^^ page 454 of the opinion, it is held: He is an administrator to collect, and only that. When he assumed the right to pay out any money belonging to said estate he did so at his peril," and on same page: "The claim of appellant to be allowed $1,750 for attorney fees is for that sum alleged to have been paid to Moses Solomon. We notice in this record that when the $20,000 note described in appellant's inventory was paid, $2,000, part of the proceeds, was applied in part payment of a personal debt due from said attorney to H. H. Walker, page 455: Said note of $20,000 35— Section 12, (1), 13, (2), 17, 32, and cases cited in each volume (3), chapter 3, "Administration of under sections of statute in ques- Estates." Starr & Curtis Annotat- tion; Kurd's R. S. of 111. 1905, ed Statutes of Illinois, with Jones same sections and chapter, pp. & Addington's Supplements there- 106, 107. to. Vol. 1, pp. 273, 274; Vol. 4, p. 36—186, 111. 445. 332 THE LAW OF ESTATES. had not matured. Said attorney negotiated for the payment thereof and received all the proceeds. Appellant had no right or authority whatever to sell said note or accept payment thereof prior to maturity." He has no power to make invest- ments with the money due the estate.^®* The appointment of an administrator to collect is authorized where an appeal has been taken from order admitting will to probate, and where widow's award has not been set off and assets of estate are in danger of being lost pending determination of appeal.^ "^ 406. Oath — powers as to perishable goods — the right to bring suit, and the termination of powers of administrators to collect. As given by statute are set forth in sections 14, 15, 16 and 17 of the Administration Act, and to which reference is made.^s In bringing suit by an administrator to collect, he should aver his appointment and should profert his letters of adminis- tration.3^ An administrator to collect must account upon legal demand to pay over.^^ And he forfeits his right to commis- sions if he neglects to account and deliver up property of es- tate.^^ And a failure to pay over amount admittedly in his hands, is not excused by his dispute of liability as to further sums likewise ordered to be paid over to administrator succeed- ing him.^2 i^ jg aigQ held, if the court has jurisdiction of the subject matter and of the person it appoints as administrator its act is not void, however erroneous it may be ; and the legality 36a — People v. Solomon, 184 111. ute noted in each volume; Kurd's 490, 499, 500. R. S. of 111., 1905, same sections 37— Schenk v. Schenk, 80 111. and chapter, pp. 106, 107; Miller App. 613. V. Kingsbury, 28 111. App. 532. 38— Sections 14, 15, 16 and 17, 39— Foster v. Adler, 81 111. App. chapter 3, "Administration of Es- 655. tates." Starr & Curtis Annotated 40 — Solomon v. Holden, 72 111. Statutes of Illinois, with Jones & App. 353. Addington's Supplements thereto. 41 — In re Estate of Wincox 186 Vol. 1, p. 274; Vol. 4, p. 32, and 111. 456. cases cited under sections of stat- 42 — Solomon v. People, 191 111. 292. ADMINISTRATORS TO COLLECT. 333 of such appointment cannot be questioned in a suit on the bond of a former administrator for failure to turn over the funds to the administrator appointed as his suecessor.'*^ 43— Solomon v. People, 191 111. 292. In that case the court held, that the sureties on the bond of the administrator were not liable for the penalty of twenty per cent prescribed by section 17 of the Administration Act, which was included in the judgment of the circuit court, a remittitur being allowed of such penalty. See also Solomon v. People, 89 111. App. 374. CHAPTER XX PUBLIC ADMINISTRATORS Sec. 407. Public administrator, Gover- nor appoints, term of oflBce, duty. 408. Wlien they shall administer. 409. Who to be appointed admin- istrator. 410. Bond, neglect, removal addi- tional security. Sec. 411. Where there is a widow, etc., letters revoked. 412. Disposition of unclaimed es- tate. 413. When public administrator to protect the estate. Sec. 407. Public administrator, governor to appoint — term of ofl5ce — duties. In 1881, the legislature revised the act per- taining to public administrators passed in 1845 ; the act as re- written went into force July 1, 1881 ; the statute is as follows, sections 44 to 50 inclusive, chapter 3, entitled "Administration of Estates" (Sec. 44): "The governor of this state, by and with the advice and consent of the senate, shall, before the first Monday in December, 1881, and every four years thereafter, appoint in each county in this state, and as often as any vacancy may occur, a suitable person to be known as public administra- tor of such county, who shall hold his office for the term of four 3'^ears from the first Monday of December, 1881, or until his successor is appointed and qualified; and the public admin- istrators in office at the time of the first appointment under the provisions of this section shall, immediately upon the qualifica- tion of the persons appointed under the provisions hereof, turn over all moneys, books and papers appertaining to their offices, respectively, to the persons so appointed; and such public ad- 334 PUBLIC ADMINISTRATORS. 335 mkiistrators so appointed shall proceed to settle up all unset- tled estate in accordance with law."^^ ** Every person appointed as a public administrator shall, be- fore entering upon the duties of his office, take and subscribe and file in the office of the clerk of the county court, the fol- lowing oath, to-wit, prescribed by statute.^^ 408. When they shall administer. Section (46) : "When- ever any person dies seized or possessed of any real estate within this state, or, having any right or interest therein, has no rela- tive or creditor within this state who will administer upon such deceased person's estate, it shall be the duty of the county court, upon application of any person interested therein, to commit the administration of such estate to the public admin- istrator of the proper county. ' '^^ In Langworthy v. Baker^"^ it was held, to give the county court jurisdiction to commit an estate to a public ad- ministrator, it should affirmatively appear to be preserved of record, that there was not any relative or creditor of the de- ceased within the state, to whom administration might be granted; and that the application was made by a party inter- ested in the estate; and if the record fails to show the jurisdic- tional facts necessary to authorize the grant of letters, the whole proceedings will be defeated, and a sale made thereunder will be declared void on a writ of error. In Branch v. Banking this section of the statute was construed and it was held its language, ''any person interested," means, the words are 44 — See sections 44 to 50 inclu- 4G — Section 4G, chapter 3, "Ad- sive, chapter 3, "Administration ministration of Estates." Starr & of Estates." Starr & Curtis An- Curtis Annotated Statutes of Illi- notated Statutes of Illinois, Vol. nois. Vol. 1, p. 288; Kurd's R. S. 1, pp. 287, 288, 289; Kurd's R. S. of 111., 1905, p. 112. of 111., 1905, same sections and 47—23 III. 430; see also the fol- chapter, pp. 112, 113. lowing cases, modifying Lang- 45 — Section 45, chapter 3, "Ad- worthy v. Baker, supra. Schnell v. ministration of Estates." Starr & Chicago, 38 111. 383; Wright v. Curtis Annotated Statutes of Illi- Wallbaum, 39 111. 554; Hobson v. nois. Vol. 1, p. 288; Kurd's R. Ewan, 62 111. 146. S. of 111., 1905, p. 112. 336 THE LAW OF ESTATES. general, with no limitation in respect to the person applying for letters, as there is nothing in our statute indicating an in- tention to confine this right to citizens of this state.*^ That un- der the above section of the statute, administration may be granted to public administrator with will aunexed.^^ But in this connection we call attention to the act of the legislature of this state, passed in 1905 and in force July 1, 1905, which confers additional powers upon public administrators or greatly en- larges those theretofore existing. The act is as follows : An act entitled "An act to amend section 18 of an act entitled 'An act in regard to the administration of estates,' " approved April 1, 1872, in force July 1, 1872, approved May 12, 1905, in force July 1, 1905.50 409. Who to be appointed administrator — death to be proved. "Administration of the estate of all persons dying intestate shall be granted to some one or more of the persons hereinafter mentioned and they are respectively entitled to preference thereto in the following order: 1st. To the surviving husband or wife or any competent person nominated by him or heiV 2d. To the children or any competent person nominated by them. 3d. To the father or any competent person nominated by him. 4th. To the mother or any competent person nominated by her. 5th. To the brothers or any competent person nominated by them. 6th. To the sisters or any competent person nominated by them. 7th. To the grandchildren or any competent person nomi- nated by them. 48—108 111. 444. Rosenthal 50— Section 18, chapter 3, "Ad- Admr. v. Renick, 44 111. 207. ministration of Estates" as amend- 49— Branch v. Rankin, 108 111. ed in 1905. See Kurd's R. S. of 444. 111., 1905. p. 107. PUBLIC ADMINISTRATORS. 337 8th. To the next of kin or any competent person nominated by them. 9th. To the public administrator or to any creditor who shall apply for the same. Provided, that only such persons as are en- titled to administer under this act shall have the right to nom- inate. When several are claiming and are equally entitled to admin- istration, the court may grant letters to one or more of them, preferring relatives of the whole to those of half blood. Pref- erence and the right to nominate under this act must be exer- cised within sixty days from the death of the intCotate, at the expiration of which time administration shall be granted to the public administrator. In all cases where the intestate is a non- resident, and in all cases where there is no widow, husband or next of kin entitled to a distributive share in the estate of such intestate, who at the time of the death of said decedent is a bona fide resident of this state, administration shall be granted to the public administrator; and in all cases where any contest shall arise between the widow, heirs at law or next of kin of the decedent in relation to the grant of letters, and it shall appear to the court that the estate of said decedent is liable to waste, loss or embezzlement administration to collect shall be granted to the public administrator of the proper county to administer such estate until said contest is determined. No administration shall in any case be granted until satisfactory proof shall be made to the county court to whom application for that purpose is made that the person in whose estate letters of administra- tion are requested is dead and died intestate. Provided, that when the heirs are residents of this state and the estate is solvent and without minor heirs and it is desired by the parties in inter- est to settle the estate without administration this law shall not apply. And, further, provided, that no non-resident of this state shall be appointed or act as administrator or executor, "^i 410. Bond — neglect — ^removal — additional security. "Sec. 47. It shall be the duty of the county court to require of a 51— Kurd's R. S. of 111.. 1905, p. 107. 23 338 THE LAW OF ESTATES. public administrator, before entering upon the duties of his office, to enter into a bond, payable to the people of the State of Illinois, in a sum of not less than five thousand dollars, with two or more securities, approved by the court, and conditioned that he will faithfully discharge all of the duties of his office, and the court may, from time to time, as occasion shall require, demand additional security of such administrator and may re- quire him to give the usual bond required of administrators in other cases, touching any particular estate in his charge ; and in default of giving such bond within sixty days after receiving his commission, or in default of giving additional security within sixty days after being duly ordered by said court so to do, his office shall be deemed vacant, and, upon certificate of the county judge of such fact, the governor shall fill the vacancy aforesaid. ' '^^ 411. Where there is a widow, etc. — ^letters revoked. Section 48: "Whenever administration is granted to any public ad- ministrator, and it shall afterwards appear that there is a widow or next of kin, or creditor of the deceased, entitled to the pref- erence of administration by this act, it shall be the duty of the county court to revoke the letters granted to such public admin- istrator, and to grant the same to such widow, next of kin or creditor, as is entitled thereto. Provided, application is made by such person, within six months after letters were granted to the public administrator; saving to such administrator, in all' 52— Section 47, chapter 3, "Ad- R. S. of 111., 1905, pp. 1417, 1418, ministration of Estates." Starr & 1419. Curtis Annotated Statutes of Illi- Under the statute of 1845 and nois, Vol. 1, p. 288; Kurd's R. S. 1872, an administrator was re- of 111., 1905, pp. 112, 113. See al- quired to take out letters and give so sections 1, 4, 13, chapter 103, bond in each estate when ap- "Official Bonds." Starr & Curtis pointment was made. This statute Annotated Statutes of Illinois now in force passed in 1881, as with Jones & Addington's Supple- applied to public administrators, ments thereto, Vol. 2, pp. 2831- requires a permanent bond from 2835; Vol 4, p. 907; Vol. 5, p. 406, such official, and such bond is and cases cited under sections in given as required under the of- question in each volume; Kurd's ficial bond act cited above. PUBLIC ADMINISTRATORS. 339 eases, all such sums of money on account of commissions or ex- penses as are due to, or incurred by him, in the management of said estate. "^3 412. Disposition of unclaimed estate. Section 49: *'If any balance of any such estate as may, at any time, be committed to any public administrator, shall remain in the hands of such administrator, after all just debts and charges against such estate, which have come to the knowledge of such public admin- istrator within two years after the administration of such estate was committed to him, are fully paid such administrator shall cause the amount thereof, with the name of the intestate, the time and place of his decease, to be published in some news- paper published in his county, or if no newspaper is published in his county, then in the nearest newspaper published in this state, for eight weeks successively, notifying all persons having claims or demands against such estate to exhibit the same, to- gether with the evidence in support thereof, before the countj^ court of the proper county, within six months after the date of such notice, or that the same will be forever barred; and if no such claim is presented for payment or distribution within the said time of six months, such balance shall be paid into the treasury of said county; and the county shall be answerable for the same, without interest, to such persons as shall there- after appear to be legally entitled, on order of the county court, to the same, if any such shall appear. "^^ 413. When public administrator to protect the estate. Sec- tion 50: "Upon the death of any person intestate, not leaving a widow, or next of kin, or creditor, within this state, the pub- lic administrator of the county wherein such person may have died, or when the decedent is a non-resident, the public admin- 53 — Section 48, chapter 3, "Ad- 54 — Section 49, chapter 3, "Ad- ministration of EJstates." Starr & ministration of Estates." Starr & Curtis Annotated Statutes of Illi- Curtis Annotated Statutes of Illi- nois, Vol. 1, p. 288; Kurd's R. S. nois, Vol. 1, p. 289; Kurd's R. S. of 111., 1905, p. 113. of 111., 1905, p. 113. 340 THE LAW OF ESTATES. istrator of the county wherein the goods and chattels, rights and credits of such decedent shall be, may take such measures as he may deem proper to protect and secure the effects of such intestate from waste or embezzlement, until administration thereon is granted to the person entitled thereto, the expenses whereof shall be paid to such public administrator, upon the allowance of the county court, in preference to all other demands against such estate, funeral expenses excepted. "^^ This section is substantially the same as the statute of 1874, then a part of the chapter of "Wills," sections 55, 57 of that statute being construed in Rosenthal v. Prussing,^^ it is held that, ' ' upon the death of a non-resident intestate leaving real or personal property in this state, a creditor of the estate living in this state is entitled to a preference over the public adminis- trator in the grant of letters of administration upon such es- tate." The grant of letters of administration with the will an- nexed, to the public administrator, upon the estate of a deceased non-resident debtor, on the application of a non-resident creditor whose claim had been allowed in the state of the decedent's domicile, will not necessarily give such creditor an undue advantage over other foreign creditors. They may have their claims also allowed here, and share in the assets.^' 55— Section 50, chapter 3, "Ad- 56—108 111. 128. ministration of Estates." Starr & 57 — Branch v. Rankin, 108 111. Curtis Annotated Statutes of lUi- 445. nois, Vol. 1, p. 289; Kurd's R. S. of 111., 1905, p. 113. CHAPTER XXI GRANTING LETTERS OF ADMINISTRATION- APPOINTMENT Sec. il4. Granting of letters of admin- istration, who appointed. il5. Miscellaneous application of statute. 416. Administrator's powers. 417. Administrator or executor not authorized by will can- not loan funds of estate. 418. Executors or administrators have no power to mortgage lands. 419. When letters may be granted to other than husband. 420. Affidavit of death. 421. Form of letters of adminis- tration. 422. Administrator's oath. 423. Bond of administrator. 424. Failure to file additional bond, effect, dual officer. 425. Joint or several bonds. 426. Suit on bond. 427. Miscellaneous rights and rem- edies under suit on bond. 428. The rule of construction placed upon bonds. 429. Defense of surety on bond. Sec. 430. Revoking letters, removing executor or administrator. 431. For false pretense. 432. Revoked when will produced, and when set aside. 433. Revoked for lunacy, disabil- ity, mismanagement, etc. 434. Removal of representative from state. 435. Further security, failure to give. 436. Counter or other security. 437. New bond form. 438. Surety desiring release dur- ing administration, 439. Failure of executor or admin- istrator to comply, removed. 440. Death of sole administrator or executor. 441. Revocation or death of part. 442. Liability after revocation. 443. Resignation of executor or administrator, settlement. 444. Costs. 445. Foreign executors or admin- istrators, power to sue. 446. Exception when letters grant- ed here. Sec. 414, Granting letters of administration — who to be ap- pointed administrator— death to be proved. "Administration of the estate of all persons dying intestate shall be granted to some one or more of the persons hereinafter mentioned and they are respectively entitled to preference thereto in the following 341 342 THE LAW OF ESTATES. orders: 1st, To the surviving husband or wife or any comptJ- tent person nominated by him or her. 2nd. To the children or any competent person nominated by them. 3rd. To the father or any competent person nominated by him. 4th. To the mother or any competent person nominated by her. 5th. To the brothers or any competent person nominated by them. 6th. To the sisters or any competent person nominated by them. 7th. To the grandchildren or any competent person nominated by them. 8th. To the next of kin or any competent person nominated by them. 9th. To the public administrator oi- to any creditor who shall apply for the same. Provided, that only such persons as are entitled to administer under this act shall have the right to nominate. When several are claiming and arei equally entitled to administration, the court may grant letters/ to one or more of them, preferring relatives of the whole to those of half blood. Preference and the right to nominate under this act must be exercised within sixty days from the death of the intestate, at the expiration of which time administration shall be granted to the public administrator. In all cases where the intestate is a non-resident, and in all cases where there is no widow, husband or next of kin entitled to a distributive share in the estate of such intestate, who at the time of the death of said decedent is a bona fide resident of this State, administra- tion shall be granted to the public administrator; and in all cases where any contest shall arise between the widow, heirs at law or next of kin, of the decedent in relation to the grant of letters, and it shall appear to the court that the estate of said decedent is liable to waste, loss or embezzlement administration to collect shall be granted to the public administrator of the proper county to administer such estate until said contest is determined. No administration shall in any case be granted until satisfactory proof shall be made to the county court to whom application for that purpose is made that the person in whose estate letters of administration are requested is dead and died intestate. Provided, that when the heirs are residents of this State and the .estate is solvent and without minor heirs GRANTING LETTERS OF ADMINISTRATION. 343 and it is desired by the parties in interest to settle the estate without administration this law shall not apply. And, further, provided, that no non-resident of this State shall be appointed or act as administrator or executor. "^ 415. Miscellaneous applications of statute and powers of administrator. The word "or" in sentence of statute, begin- ning: "In all cases where the intestate is a non-resident or without a widow," means "and."^ Illegitimate child has no right to administer on estate of father.^ Powers of administra- tor under valid appointment relate back to date of decedent's death.^ Proper place for principal administration of estate of deceased person is his domicile at time of death; but adminis- tration may be taken out in any place in which decedent leaves personal property.^ Administration may be granted in Illinois, upon property of deceased non-resident which was within such State at date of decedent's death. And a husband residing in Illinois, has a right to administer on property of deceased wife which was within Illinois at date of her death ; and, this, though such wife died domiciled in another State.^ A probate court may, in its discretion, grant administration limited to a single object.'^ "Within meaning of the statute cited, a "creditor" is one to whom a sum is due to be paid out of the estate of a de- cedent after allowance of all just credits.^ The chief object of ancillary administration, is to protect local creditors.^ No suc- 1 — As amended by an act en- v. Gerisch, 163 111. 625, 631; Make- titled an act to amend section 18 peace v. Moore, 5 Gilm. (111.) 474; of an act entitled "An act in re- Wells v. Miller, 45 111. 382; 7 Am. gard to the administration of es- & Eng. Ency. of Law, 194, and tates." Approved April 1, 1872. cases cited in note 1. In force July 1, 1872, amended 5— Wilkins v. Ellett, 108 U. S. and approved May 12, 1905. In 256. force July 1, 1905. Kurd's R. S. 6— N. E. Ins. Co. v. Woodworth, of 111., 1905, p. 107. Ill U. S. 138. 2 — Rosenthal v. Trussing, 108 7— McArthur v. Scott, 113 U. S. 111. 128. 399. 3— Myatt v. Myatt, 44 111. 473. 8— Estate of John Wilson, 80 4— McClune v. People. 19 111. 111. App. 218. App. 105; Globe Accident Ins. Co. 9 — Ramsey v. Ramsey, 97 111. App. 277. 344 THE LAW OF ESTATES. eessful collateral attack can be made upon the order of the probate court appointing an administrator; such collateral at- tack can be made only when it goes to the jurisdiction of the court direct.^*' 416. Administrator's powers. He may prosecute and defend suits, and may enforce judgments and decrees.^ ^ And such administrator has discretionary power, and in certain cases it may amount to a duty, to redeem realty from mortgage debt under sale or other judgment liens.^^ Personal property de- scends to heirs, but must pass through due administration under the directions of the proper court.^^ Administrator has no right over decedent's realty except to sell it to pay debts, and then only under the proper order of court.^* 417. An administrator or executor not authorized by will cannot loan funds of estate. In Wadsworth v. Connell the facts of record are substantially as follows : The testator 's estate con- sisting principally of real estate, the executor was required by the will, to sell it at such time, and on such terms, as might be advantageous. He was directed to invest one-third of the pro- ceeds of sale for the benefit of the widow during her natural life, "with as little delay as possible, on safe securities." The execu- 10 — Solomon v. People, 191 111. same section and chapter, p. 1258. 295; Frothingham v. Petty, 197 12 — Section 18, chapter 77, 111. 429. "Judgments and Decrees;" Starr 11 — Section 10, chapter 1, en- & Curtis Annotated Statutes of titled "Abatement." Starr & Illinois, with Jones & Addington's Curtis Annotated Statutes of Illi- Supplements thereto, Vol. 2, pp. nois, with Jones & Addington's 2353 to 2358, and cases cited; Vol. Supplements thereto. Vol. 1, pp. 4, p. 753, and cases cited; Vol. 5, 254, 255, and cases cited; Vol. 4, p. 333, and cases cited; Kurd's R. p. 27, and cases cited; Kurd's R. S. of 111., 1905, same section and S. of 111., 1905, same section and chapter, p. 1255. See also Mc- chapter, p. 89. See also section Creedy v. Mier, 64 111. 495. 37, chapter 77, entitled "Decrees 13 — Leamon v. McCubbin, 82 111. and Judgments." Starr & Curtis 263. Annotated Statutes of Illinois, 14— Stone v. Wood, 16 111. 177; 2nd ed., Vol. 2, p. 2370, and cases Walbridge v. Day, 31 111. 379. cited; Kurd's R. S. of 111., 1905, GRANTING LETTERS OF ADMINISTRATION. 345 tor was also named in the will as guardian but never qualified as such, but did qualify as executor. He took charge of, and sold, the property, and made report annually to the probate court; kept the money invested at the highest rate of interest, and lost but two loans of $500 each. Divers sums of money were paid to him as executor as appears in the account rendered to which exceptions were filed and under which is shown the investments made upon which the court passes. It is said, page 376 : " it was as executor, and not as guardian, that he received the money, and he so holds it, as it was never paid over to a guardian, and he never became such. The statute has not conferred on execu- tors or administrators power to loan the funds of the estate, nor was there any such power conferred by the will. It then fol- lows, that appellant made these loans without legal authority, and of his own wrong. "^^ In the case of Gilbert v. Guptill,^^ it was held; where a guardian failing to conform his acts to the statute, and loaning money contrary to the requirements of the statute, does so at his own risk, and in case of loss he is liable to make it good; and the same principle applies to all persons intrusted by the statute with the custody of the money of others. Their safety consists in an adherence to legal requirements. 15 — Wadsworth v. McConnell, merely directory. The court fur- 104 111. 369. ther holding under the facts in 16 — 34 111. 112. See also Mc- that case, the adding of another Intyre v. People, 103 111. 142. name as security in the body of Where a guardian loaned his the guardian's bond, and the sign- ward's money: The court holding ing and sealing of such bond by in that case, the statute requires, the new surety, under an order of the county court must approve the cou,rt requiring additional secu- security; and in such case where rity, even if lawful, will not affect the loan was made without the ap- the security of the ward in the proval of the court it was held, the bond as originally made, or de- ward might treat such loan made, feat a recovery thereon; and if as an appropriation of the money lawfully made, the ward may to the guardian's own use. The treat the bond as that of all the statutory requirement "that the se- sureties named in it after its al- curity shall be approved by the teration, and may sue any one of court" being mandatory and not such sureties separately. 346 THE LAW OF ESTATES. The administrator is not authorized to loan funds of the estate; and if he does in case of loss he is liable therefor.*'^ 418. Executors and administrators have no power to mort- gage lands of the estate. In the case of Johnson v. Davidson,^^ quoting from page 235 : ' ' The argument on behalf of appellants seems to proceed upon the supposition that an administrator may bind the heirs by his mortgage of real estate for the purpose of raising money with which to pay the debts of the ancestor, and that a court of equity will sustain the mortgage, or a title derived under it, if it be shown that the borrowed money was honestly applied to the payment of debts. No authority is cited in support of this position, and none, we believe, can be found. ' ' 419. When letters may be granted to other than husband, etc. "Letters of administration upon the goods and chattels, rights and credits of a person dying intestate, shall not be granted to any person not entitled to the same, as husband, widow, next of kin, creditor or public administrator, within seventy-five days after the death of the intestate, without satis- factory evidence that the persons having the preference have relinquished their prior right thereto; but if application is made after the expiration of seventy-five days, the county court may proceed to grant letters to the applicant or any other per- son, as he may think fit. "^^ 17 — Caruthers v. Caruthers, 99 nois, Vol. 1, p. 278; Kurd's R. S. 111. App. 404. of 111., 1905, same section and 18—162 111. 232. In the case of chapter, p. 108. Johnson v. Davidson, it was also Owing to an act amending sec- held: A court of equity will not tion IS, chapter 3, "Administra- sustain a title derived under a tion of Estates" (ante 409) the mortgage made by an administra- time is now limited to 60 days in- tor to raise money to pay debts of stead of 75 after death in which the estate, even though the money the right of the public adminis- borrowed is honestly applied to trator or creditor to take out let- the payment of such debts. ters of administration may be ex- 19 — Section 19, chapter 3, "Ad- ercised. Therefore the amenda- ministration of Estates." Starr & tory act as noted passed May 12, Curtis Annotated Statutes of Illi- 1905, by implication repeals sec- GRANTING LETTERS OF ADMINISTRATION. 347 420. AflSdavit of death. Section 20 of the administration act is as follows: ''Before letters of administration shall hereafter be issued, the person applying for the same, or some other credible person, shall make and file an affidavit with the proper clerk, setting forth, as near as may be, the date of the death of the deceased, the probable amount or value of the personal estate, and the names of the heirs and widow, or surviving hus- band, if known. "20 421. Form of letters of administration. Section 21 of the administration act prescribes the form of letters and concludes after giving such form as follows: "And in all cases where letters of administration with the will annexed, letters of admin- istration de bonis non, or letters of administration to any public administrator are issued, the same shall be in conformity with the foregoing form, as nearly as may be, taking care to make the necessarj^ variations, additions or omissions to suit each particular case."2i 422. Administrator's oath. Section 22 of the administration act is as follows: "The county court shall, in all cases, upon granting administration of the goods and chattels, rights and credits of any person having died intestate, require the ad- ministrator (public administrators excepted) to take and sub- scribe and file with the clerk of the court an oath, in substance (given by statute). -^ tion 19, of the same chapter, in so nois. Vol. 1, pp. 278, 279; Kurd's far as that act is in conflict with R. S. of 111., 1905, same section section 18 noted. and chapter, p. 108. See also N. 20— Laws of 1859, p. 95, sec. 9: E. Ins. Co. v. Woodworth, 111 U. Section 20, chapter 3, "Adminis- S. 138. In that case it is held, that tration of Estates." Starr & Cur- a person disputing the validity of tis Annotated Statutes of Illinois, letters regular on their face, has Vol. 1, p. 278; Kurd's R. S. of 111., the burden of proof in showing 1905, same section and chapter, p. the invalidity thereof. 108. 22— R. S. of 1845, p. 550; sec. 21— R. S. of 1845, p. 550, sec. 67; Section 22, chapter 3, "Admin- €6; section 21, chapter 3, "Admin- istration of Estates." Starr & istration of Estates." Starr & Curtis Annotated Statutes of Illi- Curtis Annotated Statutes of Illi- nois. Vol. 1, p. 279; Kurd's R. S. 348 THE LAW OF ESTATES. 423. Bond of administrator. Section 23 of the administra- tion act as amended May 13, 1903, is as follows: "Every administrator, except as is hereinbefore in section eight (8) provided, shall, before entering upon the duties of his office, enter into a bond, with good and sufficient security, to be approved by the county court, and in counties having a pro- bate court, by the probate court, in a sum double the value of the personal estate, and payable to the People of the State of Illinois, for the use of parties interested, substantially in the following form (form given). Which said bond shall be signed and sealed by the said administrator and his securities, attested by the clerk of the county court, or probate court, or any per- son in the county authorized to administer oaths, and filed in said clerk's office, and that where it becomes necessary to sell the real estate of any intestate for the payment of debts against his estate under the provisions of this act, the court shall re- quire the administrator to give further and additional bond, with good and sufficient security, to be approved by the court, in a sum double the value of the real estate of the decedent, sought to be sold, and payable to the People of the State of Illinois for the use of the parties interested in the form above prescribed; and in all cases where bonds shall be taken from any administrator de bonis non or in any other case where a form shall not be prescribed in this act, the same shall be made as nearly as may be, in conformity with the form above prescribed, with corresponding variations to suit each particu- lar case. "23 424. Failure to file additional bond — effect — de facto oflScer taking bond — dual officer — administrator and guardian of sole distributee. The failure of the court to require by its order, of 111., 1905, same section and ton's Supplements thereto, Vol. 1, chapter, p. 108. pp. 279, 280; Vol. 5, pp. 16, 17, and 23 — Laws of 1903, p. 1. In force cases cited under section of stat- July 1, 1903: Section 23, chapter ute in question in each volume; 3, "Administration of Estates." Kurd's R. S. of 111., 1905, same sec- Starr & Curtis Annotated Statutes tion and chapter, pp. 108, 109. of Illinois, with Jones & Adding- GRANTING LETTERS OF ADMINISTRATION. 349 and also, the failure of the administrator de bonis non to give additional bond required by statute where real estate is sold, does not affect the validity of the sale. The rights of purchas- ers in such proceeding will be protected in a collateral proceed- ing, against mere errors which may have intervened. Particu- larly is this the settled doctrine of the courts of Illinois, where the proceeds of an estate have all been accounted for, and where the property sold at administrator's sale has vested in good faith in persons not parties to the record, and who obtain land so sold by mesne conveyances from the purchaser at administrator's sale; and who for a number of years have been in quiet and peaceable possession and expended considerable sums in improvement of the property.^^ A bond taken by an officer de facto is valid.-^ In the case of Bell v. People the facts of record are substantially: The same person was ad- ministrator and guardian of the sole heir of the. estate of which he was administrator. No report was made by such dual officer of his acts and doings either as administrator or as guardian of the heir. He was in fact and therefore sustained the dual 24 — Frothingham v. Petty, 197 refunding bond, and therefore, 111. 431. after the death of such adminis- 25 — 94 111. 230. And see also trator and executor, the sureties supporting the opinion in Bell v. on his bond as administrator, will People, supra, Karr v. Karr, 6 not be liable for such money so re- Dana, 4; Watkins v. Shaw, 2 G. ceived by him as executor. And & J. (Md.) 220; Carroll v. Bos- it is also held, that after the death ley, 6 Yeager, 220; Taylor v. De- of such administrator and execu- blois, 4 Mason, 131; Pratt v. tor, and the appointment of an Northam, 5 Mason, 95; Weir v. administrator de bonis non of the The People, 78 111. 192. In the estate of which he was executor, latter case, where the administra- it is not in the power of the ad- tor of an estate also qualified as ministrator de bonis non, by set- executor of the will of the sole tling with the sureties on the ex- heir and distributee of his intes- ecutor's bond, to affect the rights tate estate, it was held the re- of the surety on the bond of the ceipt of money by him as admin- same person, as administrator, and istrator, after the debts of the in- thereby charge the liability that testate are paid, will be regarded rested upon the sureties in the as paid to himself, as executor, bond of the deceased party as ex- wlthout any order of court for ecutor, to the surety on his bond that purpose, or the giving of any as administrator. 350 THE LAW OF ESTATES. relation or trust of administrator and guardian of the sole dis- tributee. In the ease cited suit was brought against the sure- ties on both official bonds, and the lower court entered judg- ment against sureties on the administrator's and guardian's bonds. It appeared also by the record that all debts against the estate were fully paid, and the personalty reduced to the possession of the dual officer. While matters regarding the estate were in that shape the officer holding as such adminis- trator and guardian died, having on hand funds aggregating nearly $6,000 belonging to said estate, and held for the benefit of his ward and sole distributee. The court under the state of facts shown in that case, held: That it will be presumed after a reasonable time for settling the estate had elapsed, and es- pecially after the administration of the estate has been com- pleted, and that he held such funds as guardian, his sureties as guardian alone will be liable for the same. That an order of the county court transferring the funds in his hands as administrator is not indispensable in such case to charge his sureties as guardian. 425. Joint or several bonds. Section 24 of the Administra- tion act is as follows: "When two or more persons are ap- pointed executors or administrators of the same estate, the court may take a separate bond, with sureties, from each, or a joint bond, with sureties, from all. "^^ 2G— Section 24, chapter 3, "Ad- tion 1, Chapter 131, entitled "Con- ministration of Estates." Starr & struction of Statutes" where it is Curtis Annotated Statutes of Illi- provided, that the signature of any nois, Vol. 1, p. 280; Kurd's R. S. person to a public bond must be of 111., 1905, same section and in the proper hand writing of the chapter, p. 109. See also sections person signing, or, if he is unable 1, 4, chapter 103, entitled "Official to write, his proper mark. Vol. 3, Bonds" Starr & Curtis Annotated Starr & Curtis Annotated Statutes Statutes of Illinois, Vol. 2, pp. of Illinois, page 3836; Kurd's R. 2831, 2832; Kurd's R. S. of 111., S. of 111., 1905, p. 1947; see People 1905, same section and chapter, v. Robinson, 89 111. 103; Boice v. pp. 1417, 1418. See clause 15, sec- Gilbert, 29 111. 527; Stern v. Peo- ple, 102 111. 540. GRANTING LETTERS OF ADMINISTRATION. 351 426. Suit on bond. Section 25 of Administration Act is as follows: "All bonds which may at any time be given by any executor or administrator, either with or without the will annexed, or de bonis non, to collect, or public administrator, may be put in suit and prosecuted against all or any one or more of the obligors named therein, in the name of the People of the State of Illinois, for the use of any person who may have been injured by reason of the neglect or improper conduct of any such executor or administrator, and such bonds shall not become void on the first recovery thereon, but may be sued upon, from time to time, until the whole penalty shall be re- covered: Provided, that the person for whose use the same is prosecuted, shall be liable for all costs which may accrue in the prosecution of the same, in case the plaintiffs fail in their suit; and certified copies of all such bonds, under the seal of the clerk of the county court, shall be received as evidence to authorize such recovery in any court of law or equity of com- petent jurisdiction, "2" This statute construed in People v. Lott,^^ is held to refer to actions at law, and not to authorize bill in equity. In suits on bonds the People as plaintiffs may sue for use of several plaintiffs for all damages sustained.^*^ A 27— Section 23, Chapter 3, "Ad- 28—27 111. 215. ministration of Estates." Starr & 29 — People v. Stacey, 6 III. App. Curtis Annotated Statutes of 111- 521'; People v. Hunter, 89 111. 392; inois, with Jones & Addington's Ralston v. Wood, 15 III. 159; Peo- Supplements thereto. Vol. 1, p. pie v. Randolph, 24 111. 324; Peo- 280, and cases cited; Vol. 4, p. 33, pie v. Summers, 16 111. 173; People and cases cited; Vol. 5, p. 17, and v. Lane, 36 111. App. 649; Nevitt cases cited; Kurd's R. S. of 111., v. Woodburn, 160 711. 214; People 1905, same section and chapter, p. v. Solomon, 89 111. App. 386; 109. See also sections 125, 128, Same v. Same, 191 III. 290. In the "Administration Act" Starr & case of Nevitt v. Woodburn, Curtis Statutes, Vol. 1, p. 347; supra, p. 209, this general rule is Kurd's R. S. of 1905, p. 126. See stated and applied. "Sureties on also sections 4, 13, chapter 103, official bonds are not concluded by "Official Bonds," Starr & Curtis a decree or judgment against their Annotated Statutes of Illinois, principal, unless they have had Vol. 2, pp. 2832, 2835; Kurd's R. their day in court or an oppor- S. of 111. 1905, pp. 1417, 1419; R. S. tunity to be heard in their de- of 111., 1845, p. 551, sec. 59. fense; but administration bonds 352 THE LAW OF ESTATES. debt may be maintained on bond by creditor holding judg- ment against administrator, although such judgment was never presented or allowed by the probate court.^*^ 427. Miscellaneous rights and remedies arising under suit on bond or mal-administration. Administrator 's failure to com- ply with order of court is cause for action on bond.^^ But an erroneous order of the probate court for sale of realty not in conformity to statute, will not make sureties on administra- tor's bond liable for moneys coming to the hands of adminis- trator under such sale.^^ The measure of liability is fixed by the bond.^3 Inventory does not bind surety as to what prop- erty constitutes assets of estate.^^ The fact that one of the principals to the bond died pending the appeal, and that ap- pellee was compelled to pursue his remedy against his debtors separately, one in person and the other through the Probate court, does not, upon proper construction of the bond, release the sureties.^^ Equity will relieve against mal-administration seem to form an exception to this 159; Housh v. People, 66 111. 178; general rule, and the sureties a petition filed in the county court thereon, in respect of their lia- was the basis of the action in bility for the default of the prin- the latter case; City of Chicago cipal, seem to be classed with such v. Gage, 95 111. 593; Storall v. as covenant that their principal Banks, 10 Wall. 583. See for the shall do a particular act." The form of declaration in suit on following cases holding under this bonds, Curry v. People, 54 111. 263; rule, the liability of the surety People v. Miller, 1 Scam. (111.) 83. upon an administration bond is 30 — People v. Allen, 6 111. App. fixed by the judgment against his 17. principal; and this is so by rea- 31 — Ralston v. Wood, 15 111. son of the terms of his obligation, 159; Nevitt v. Woodburn, 16u 111. which are substantially those of 203-214; Solomon v. People, 191 the bond, resulting from the na- 111. 96; People r. Lane, 36 111. ture of the obligation entered into App. 649. by the surety on an administra- 32 — Young v. People, 35 111. App. tor's or executor's bond cited in 363. support of this doctrine, 1, Woer- 33 — Solomon v. People, 89 111. ner's Am. Law of Administration, App. 386; Same v. Same, 191 111. sec. 255; 2, Black on Judgments, 290. section 589; Irwin v. Backus, 25 34— People v. Petrle, 191 111.497. Cal. 214; Ralston v. Wood, 15 111. 35— Sanger v. Nadlehoffer, 34 111. App. 252. GRANTING LETTERS OF ADMINISTRATION. 353 of estate by administrator, complainants will not be driven to suit on bond.^^ An administrator de bonis non can bring and maintain a suit against former executor and his sureties for indebtedness of that executor to the estate; this right is based upon assets recovered or collected by such former executor and converted to his own use/''^ A usee, without suing upon the bond, may have claim allowed against deceased surety's estate in the probate court, which has equitable jurisdiction in such case to adjudicate and allow such claim to the extent of the surety's liability .^^ 428. The rule of construction placed upon bonds. In the case of Beloni v. FreehornP it is said: "In construing the obligations of sureties, the same rules are applicable as in the construction of other instruments. While the obligation can not be extended by construction or implication beyond its precise terms, the meaning is to be ascertained in the same manner as in other instruments, and when this is ascei^tained, effect is to be given to it." A fair reasonably strict construc- tion of securities obligations is all that the law requires.^'^ 429. Defense of surety under bond. Where an administra- tor of an estate dies, and his surety on his bond succeeds him, and he is sued as such surety on the bond, he will be liable only for the acts of the deceased administrator, and not for 36 — McCreedy v. Meir, 64 111. dence showing a breach of the 495. conditions of the bond by the prin- 37 — Nevitt v. Woodburn, 160 cipal because he has not been 111. 214. served with process, or is not 38 — Thompson v. Block, 200 111. within the jurisdiction of the 465. court, or because his defalcation 39 — 63 N. Y. 217. Doctrine or has not been established by a rule laid down in that case was judgment against him. The obli- adopted and applied in Sanger v. gation of a surety on such bond Nadlehoffer, 34 111. App. 252. is not collateral, but a direct one. 40 — Cassady v. Trustees of See also the following cases: Mas- Schools, 105 111. 560. In this case, sie v. Eelford, 68 111. 290; Walker it is held, the sureties on a school v. Kimball, 22 111. 539; McCarty treasurer's bond, in an action v. Hall, 24 111. 343. thereon, can not object to evi- 23 354 THE LAW OF ESTATES. moneys that came into his hands as successor,^* The fact, that the inventory mentioned the fund, as being a part of the prop- erty of the estate, has been held not to create a liability against the sureties upon the executor's bond.^^ t^q sureties of an executor cannot be made liable for funds, which the executor received as agent or trustee for a legatee, though he has charged himself with them in his executorial accounts."*^ The sureties of administrator could not be held liable for funds re- ceived, not as administrator, but as agent of the w^dow and heirs, though he charged himself with such funds as adminis- trator.-*"* Sureties are not liable for the proceeds of an intes- tate's real estate, though charged in the account of an adminis- trator. This applies to a general bond only, and not where additional bond is required in the sale of real estate.^^ The sureties upon the bond of an administrator who has collected moneys, neither assets of the estate nor subject to distribution by him, and to which, as the legal representative of the dece- dent, he was not entitled, are not liable for any appropriation or use of the same by the administrator for his personal bene- fit.'*^ The fact, therefore, that the executors here saw fit to charge themselves in their general account with the balance remaining after payment of debts, legacies and charges, does not conclude the sureties under the general bond.^' The liabil- ity of a surety is strictissimi juris. ^^ The report of an execu- tor, showing a certain balance in his hands as of the date of 41— People V, Allen, 86 111. 166. 308. In this case, the court held 42 — People v. Petrie, 191 111. the liability on the bond could not 497, 513. be extended by construction be- 43 — Clay v. Hart, 7 Dana, (Ky.) yond the precise term of a county 1. clerk, which fixed the terms of the 44 — Shields v. Smith, 8 Bush, contract or liability of the surety. 601. The surety on the bond being only 45 — Commonwealth v. Gilson, 8 liable for the faithful perform- Watt. 214. ance of the duties of the clerk for 46 — Pace v. Pace, 19 Fla. 454. whom he was surety, during the 47 — Robinson v. Millard, 133 definite term of such clerk's office Mass. 236; People v. Hoffman, 182 as fixed by law. The statute fix- Ill. 390. ing the term of such clerk, which. 48 — People v. Toomey, 122 111. was taken as a part of the con- tract. GRANTING LETTERS OF ADMINISTRATION. 355 his report, is not conclusive on his sureties in an action to enforce their liability on the bond, when the report wa^ not approved by an adjudication of the court.'*'* That sureties on the bond of executor, who collect and misappropriate the pro- ceeds of a benefit certificate "where they are bequeathed to a person named by will in trust for my legal heirs" does not create a liability against the sureties on the executor's bond, if they are not otherwise liable under the law.^** A claim against the estate of a surety upon an executor's bond for the amount adjudged to be due may be allowed in the name of the usee, instead of in the name of the People for his use.*"'^ The statute provides that all bonds given by any executor may be put in suit and prosecuted in the name of the People of the State of Illinois, for the use of the person injured by reason of the neglect or improper conduct of the executor, and in an action at law they must be put in suit in that manner. The right of action at law is vested solely in the person having the legal interest. But the probate court can grant equitable relief, and can secure to parties the right allowed to them by law, for the purpose of arriving at an adjustment of the claim. And so the usee was permitted and allowed a claim against the estate in question for the amount due on the bond where the deceased was the surety.'^- 430. Revoking letters — ^removing executor or administrator from office. The statute of Illinois provides that executors or administrators may be removed and letters testamentary or of administration may be revoked for the following causes, viz. : For false and fraudulent pretense under which letters have been granted. Where will, testament or codicil is produced after letters have been granted; or where will, testament or codicil is set aside by due course of law. Where executor or 49 — People v. Hoffman, 182 51 — Thomson v. Black, 200 III. 111. 390; People v. Petrie, 191 111. 465. 497. 52— Thomson v. Black, 200 111. 50— People v. Petrie, 191 111. 465, 467. 497. 356 THE LAW OF ESTATES. administrator shall become insane, lunatic or of unsound mind, habitual drunkard or convicted of infamous crime, or shall waste or mismanage the estate, or by their conduct endanger their co-executors, co-administrators or securities; or, where executor or administrator is about to remove, or has removed beyond the limits of the State, the county court or probate court may under the strict provisions of the statute remove such from office and revoke letters testamentary or of adminis- tration theretofore granted to such.^^ 431. For false pretense. Section 26, "County courts shall revoke letters of administration in all cases where the sajne were granted to any person upon the false and fraudulent pre- tense of being a creditor of the estate upon which administra- tion is granted, or upon any other false pretense whatsoever." Section 27: "When it appears that such letters are fraudu- lently obtained by such administrator, the court revoking the same shall give judgment against the administrator for all costs of suit."^* The facts of record in Marston v. Wilcox^^ show: The administrator had obtained the letters of administration by fraudulently representing that he was a creditor of the intestate, when in truth he was not. It being held courts of probate have power to revoke letters of administration ob- tained through fraud. The right to inquire whether a fraud has been practiced, is a necessary incident to the power given by statute "to hear and determine the right of administra- tion." In the case of Wernse v. Hall, Adm.^^ the record shows the plaintiff in error applied to the probate court of Ralls county, Missouri, to have his claim allowed; that court rejected the same and the plaintiff came to Illinois and on a void judgment 53 — See sections 26 to 33, inclu- R. S. of 111., 1905, same sections sive, also sections 36 and 114. and chapter, pp. 109, 110, 124. Chapter 3, "Administration of Es- 54 — Section 27, chapter 3, "Ad- tates," Starr & Curtis Annotated ministration of Estates," statutes Statutes of Illinois, vol. 1, pp. 281 cited in note 53, with same page to 284 inclusive; page 339 of same reference. volume and cases cited under sec- 55 — 1 Scam. (111.) 60. tions of statute noted; Kurd's 56—101 111 423. GRANTING LETTERS OF ADMINISTRATION. 357 of the Circuit Court of St. Louis county, Missouri, made rep- resentation to the probate court in this State, that he was a creditor of the deceased and procured letters of administration from the county court of Madison county, this State on such representation. Held: When it was made apparent upon the trial that plaintiff in error was not a creditor, it was proper to not only disallow the claim, but also to enter an order re- voking the letters of administration, as was done by the Illi- nois court. 432. Revoked when will produced — and when will set aside. Section 28, of the administration act, provides: "If, at any time after letters of administration have been granted, a will of the deceased shall be produced, and probate thereof granted according to law, such letters of administration shall be re- voked. ' ' Section 29 : "In all cases where a will, testament or codicil shall have been proved and letters granted thereon, as aforesaid, and such will shall thereafter be set aside by due course of law, the letters granted thereon shall be revoked."^''' In the case of Shephard v. RJiode^^ the record shows: A per- son died in the State of Pennsylvania, leaving a will, and having property and creditors in the State of Illinois; letters of administration were granted by the county court of Cook county, without it being known that there was a will; but on its discovery it was probated and recorded in Pennsylvania, and in Illinois, the letters of administration first issued were revoked, and letters with the will annexed were granted. Held, that the grant of the first letters was not void, but voidable, and the acts performed by the first administrator are binding in a collateral proceeding. Under our Statute of Wills (Stat- utes of 1845), sections 71, 72, then in force, substantially the same as statutes cited under administration act, it was held, that upon the revocation of letters of administration on the discovery and probate of a will, the various acts done and per- 57 — Section 28, chapter 3, "Ad- Illinois, vol. 1, p. 281; Kurd's R. ministration of Estates." Starr S. of 111., 1905, p. 109. & Curtis Annotated Statutes of 58—60 111. 301. 358 THE LAW OF ESTATES. formed under the first grant of letters are binding until set aside in a direct proceeding/''^ Even if it were the rule of the common law that letters of administration were void where a will was in existence we do not think, in view of our statute, that such rule obtains in this State. The county court had cognizance of the subject matter; the proper application was made, and the judgment of the court was properly exercised. The grant of administration was, then, made by a court of competent jurisdiction."" In the case of Meek v. Allison,^^ where the will of a deceased person, offered for probate was rejected, and there being no appeal taken, the county court, upon a proper application, granted letters of administration upon the estate, under which the administrator paid off claims and made a partial distribution of the estate to the heirs; after this was done the will which was first rejected, was again, fifteen months after, presented for probate after protracted litigation in the circuit court of Peoria county, and was by the county court admitted to probate. The court say: "The statute clearly never intended that creditors and distributees should be compelled to wait an indefinite time for the executor or legatees to prove the will. Such a construction of the statute would postpone for twenty years any administration upon an estate, if a will existed, under the severe penalty resulting from a misapplication of the assets and a maladministration. " Held, the letters of administration were not void, but only voidable, and not being void, they were a protection to the administrator for all lawful acts done by him under them before their revocation. 433. Revoked for lunacy, disability, mismanagement, etc. Section 30 of the administration act provides: "The county court may revoke all letters, testamentary or of administration, granted to persons who become insane, lunatic or of unsound mind, habitual drunkards, are convicted of infamous crimes, 59— Shephard v. Rhodes, 111 111. 60— Shephard v. Rhodes. Ill 301; 2, Kent's Com. 413; Wright 111. 301. V. Walbaum, 39 111. 554. 61—67 111. 46. GRANTING LETTERS OF ADMINISTRATION. 359 waste or mismanage the estate, or who conduct themselves in such manner as to endanger their co-executors, co-administra- tors or securities, in all which cases the court shall summon the person charged to be in default or disqualified, as afore- said, to show cause why such revocation should not be made. When revocation is made, the reason therefor shall be stated at large upon the record."*'- Under the statute quoted and others hereafter referred to, the removal of administrators, and the revocation of letters to such by legislative enactment, was placed in the county and probate courts of this State. It is a special power or jurisdiction conferred upon such court when they act strictly within the power conferred. It is there- fore to be noted, that in all cases under section 30 the court shall summons the person charged to be in default or dis- qualified, to show cause why such revocation should not be made; and when revocation is made, the reason therefor shall be stated at large upon the record of the court in such proceed- ing. In Hanifan v. Needles^^ it is held: "It is a funda- mental principle that underlies our whole judicial fabric, that in all proceedings in courts of justice wherein it is sought to deprive the citizen of his property, or any right or privilege recognized by law, the party to be affected by them is entitled to reasonable notice of the time and place of hearing, and of the general nature or object of such proceedings. In con- formity to this general principle the county court has no power or jurisdiction to revoke the letters of an executor or adminis- trator, under the above section, until he is first cited to appear and show cause why his letters should not be revoked." In Munroe v. The People^'^ the same doctrine is announced but 62 — Section 30, chapter 3, "Ad- day of the next term of the county- ministration of Estates." Starr & court, "and present his account of Curtis Annotated Statutes of Illi- said estate for settlement," in nois, Vol. 1, p. 281; Kurd's R. S. which there is no intimation that of 111., 1905, p. 109. he is charged with waste or mis- C3 — 108 111. 403. In the case of management, etc., the county Hanifan v. Needles, it is held, on court has no jurisdiction to re- a citation to an executor, requir- voke his letters testamentary, ing him to appear on the first 64 — In the case of Munroe v. 360 THE LAW OF ESTATES. put in different form; it being there held: The county court, in the absence of statutory authority, has no power to remove an administrator, or to revoke letters of administration, after the administrator has accepted and qualified, and entered upon his duties. And until some one of the causes mentioned in the statute is placed before the court for action, the court has no power to act at all, or, in other words, has no jurisdiction. 434. Removal of representative from State. Section 31 of the administration act provides: "When it shall come to the knowledge of the county court, by affidavit or otherwise, that any executor or administrator of an estate is about to remove or has removed beyond the limits of this State, it shall be the duty of such court to cause a notice to be published in some newspaper in the county where letters testamentary or of administration were granted, for four weeks successively, and if no newspaper is published in said county, then by posting up a notice at the court house door, notifying the said executor or administrator to appear before him within thirty days after such notice, and make a settlement of his accounts, as re- quired by law. If the executor or administrator neglects or re- fuses to make such settlement, it shall be the duty of said county court to remove him from office.^^ Until some one of the causes mentioned in the statute is placed before the court for action, the court has no power to act at all in this regard — it has no jurisdiction to act.^^ Where the records show facts which confer jurisdiction, such proceeding will be upheld.^''^ The People, 102 111. 406, it petition filed in the county court is held: Until a valid revocation in that case stated in the opinion, of letters of administration al- 65 — Laws of 1847, p. 63, rewrit- ready granted on an estate is ten in present statute; section 31, made, the county court has no chapter 3, "Administration of Es- power or jurisdiction to appoint tates," Starr & Curtis Annotated another as administrator de bonis Statutes of Illinois, Vol. 1, p. 282; non of the same estate, and an Kurd's R. S. of 111., 1905, p. 110.. order for such appointment under 66 — Munroe v. People, 102 lU. such circumstances is absolutely 410. void. See also facts stated in the 67 — Frothingham v. Petty, 197 111. 426. GRANTING LETTERS OF ADMINISTRATION. 361 Where an executor removes from the State of appointment and under a bill in equity, is beyond the reach of the process of the county court, and the payment of money in executrix's hands, belonging to the estate, could not be enforced by at- tachment for contempt, a receiver may be appointed at the instance of the cestui que trust.^^ 435. Further security — failure to give. ''When any court grants letters, testamentary or of administration, of the estate of any person deceased, without taking good security as aforesaid, or when any security heretofore or hereafter taken becomes insufficient, the court may, on the application of any person entitled to distribution, or otherwise interested in such estate, require such executor or administrator to give other and sufficient security; and in default thereof the letters, tes- tamentary or of administration, shall be revoked and adminis- tration de bonis nan granted; but all acts done according to law by the executor or administrator so removed prior to such revocation, shall be valid. "^^ A new or additional bond, given by an administrator under above statute, formerly section 79 of the statute of "Wills," can not operate to discharge his sureties in the original bond.'^^ Where a second or additional bond was given, and before then, the administrator had ap- propriated the funds of the estate to his own use; the sureties on the original bond were held liable to the guardian of the heirs for such portion of the money as he was entitled to in that capacity. But a creditor, or other person interested in the estate, has his election to sue, if the maladministration for which the suit is brought, would be a breach of both the bonds. '^1 68 — Etling V. First National R. S. of 111., 1905, same section Bank, 173 111. 381. and chapter, p. Ill; Munroe v. 69— R. S. of 1845, p. 553, section People, 102 111. 406. See citations 78, rewritten; section 32, chapter {Ante 430) as to "Official Bonds." 3, "Administration of Estates," 70 — People v. Curry, 59 III. 35. Starr & Curtis Annotated Statutes 71 — Pinkstaff v. People, 59 111. of Illinois, Vol. 1, p. 283; Kurd's 148. 362 THE LAW OF ESTATES. 436. Counter or other security. Section 33 of the adminis- tration act provides: "When a surety for an executor or ad- ministrator, or his representatives, may conceive himself or themselves in danger of suffering- by the mismanagement of such executor or administrator, and shall petition the county court for relief, in writing, setting forth the cause of such appre- hension, the said court shall examine such petition, and if the court shall deem the causes therein set forth sufficient to entitle such petitioner or petitioners to relief, if true, he shall summon such executor or administrator to show cause against such peti- tion, and may dismiss the same, or direct such executor or administrator either to give good counter security to save such petitioner or petitioners harmless, or to give a new bond in the like penalty as the first; and upon refusal or neglect to give such counter security or new bond, the letters granted to such executor or administrator may be revoked.'^^ The sureties upon an administrator's bond, applied to the probate court under this section of the statute, to have the administrator give a new bond. The court took two new bonds from the adminis- trator the penalties of which being added together, equalled in amount the penalty in the old bond. This was held to be a substantial compliance with the statute, which requires that new bonds shall be in the like penalty as the first. Where a new bond is given by an administrator or executor under the statute, the sureties upon the first bond are released from all liability for past as well as for subsequent acts. If, instead of a new bond being given, the letters should be revoked, the sureties would only be released from future liabilities.'''^ 72— R. S. of 1845, p. 79, rewrit- Munroe v. People, 102 111. 215. ten; section 33, chapter 3, "Ad- This case will indicate the method ministration of Estates," Starr & of proper procedure wh«n peti- Curtis Annotated Statutes of Illi- tioning the court for an order re- nois. Vol. 1, p. 283; Hurd's R. S. yoking letters under statute. See of 111., 1905, same section and also as such guide Solomon v. chapter, p. 110; see also citations People, 191 111. 290. (Ante 430) as to "Official Bonds"; 73— People v. Lott, 27 111. 215. GRANTING LETTERS OF ADMINISTRATION. 363 437. New bond — form. Section 34 of the administration act provides: "Whenever a new bond is required to be given by an executor or administrator under either of the two pre- ceding sections the formal part of the bond shall be as hereto- fore prescribed, with a condition thereto, substantially in the following form, to-wit: (form given). Which bond shall be signed, sealed, approved, attested and filed in the same manner as other executor's or administrator's bonds, and shall have relation back to the time of granting letters testamentary or of administration.*^^ 438. Surety desiring release during administration. Section 35 of the administration act provides: "Whenever any surety on the bond of any executor or administrator desires to be re- leased from further liability upon any such bond, he may petition the court in which said bond is filed for that pur- pose, and upon notice being given to the executor or adminis- trator, as the court may direct, the court shall compel such executor or administrator, within a reasonable time, to be fixed by the court, to settle and adjust his accounts, and pay over whatever balance may be found in his hands, and file in such court a new bond, in such penalty and security as may be approved by the court — which being done the surety may be discharged from all liability on such bond. ""^ In Clark v. American Surety Co.,'^^ the record shows the surety did not file any petition nor even ask a release. The petition filed in the probate court was that of the administrator and it did not suggest that the surety desired to be released, but did ask the court to have the surety discharged so that the administrator could make an investment of money of the estate to which the surety would not consent, and therefore, he wanted to get rid 74 — R. S. 1845, p. 553, section 3; section 35, chapter 3, "Admin- 80, rewritten: Section 34, chapter istration of Estates," Starr & Cur- 3, "Administration of Estates," tis Annotated Statutes of Illinois, Vol. 1, pp. 283, 284; Kurd's R. S. Vol. 1, p. 284; Kurd's R. S. of 111., of III., 1905, same section and 1905, same section and chapter, p. chapter, p. 110. 110. 75— Laws of 1853, p. 164, section 76—171 111., p. 235. 364 THE LAW OF ESTATES. of the surety. The surety did not appear in court, but its assistant secretary wrote upon the draft of an order a consent to the entry of that order releasing it from all liability. That draft of order was found defective and insufficient, and was not entered, but another order discharging the surety was en- tered. The order entered did not find the surety was in court or had petitioned for its release, but recited this motion was made by the administrator, and also contained the statement "that appellee was one of the sureties on his bond and that the other surety had been notified of the application," when, in fact, appellee was the only surety on the bond. The court in this opinion construes sections 33 and 35 of the administra- tion act, and holds: The power of the county court to release the surety on an executor's or administrator's bond, is derived wholly from the statute; the provisions of the statute must be strictly complied with. The county court cannot release a surety on such bond, without first requiring the executor or administrator to adjust his accounts and pay over the balance in his hands, and file a new bond in such penalty and with such sureties as the court may approve. Notice of the applica- tion of a surety on such bond for his release need he given only to the executor or administrator, as the statute makes no provision for notice to heirs, creditors, or other interested par- ties. The petition for release must be filed by the surety, and the court has no power to release such surety upon the peti- tion of the administrator. The draft of an order for the re- lease of a surety on such bond, bearing the written consent of the surety to the entry of the order filed by the administrator with his petition, asking for the release of the surety, does not give the court jurisdiction to enter an order of release.'^^ 439. Failure of executor or administrator to comply — ^re- moved — successor. Section 36 of the administration act pro- vides: "If such executor or administrator shall fail to comply with such order within the time fixed by the court, the court 77— People v. Lott, 27 111. 215. See also Clark v. Am. Surety Co., 171 111. 235. GRANTING LETTERS OF ADMINISTRATION. 365 shall order that such executor or administrator be removed from his office, and shall appoint some other fit person as administrator, with the will annexed, or de bonis non, who shall give a bond as required by law. And in case of the failure of the former executor or administrator to settle his accounts and to pay over to the person so appointed all moneys, effects or choses in action in his hands by reason of his said office, then such successor shall proceed to collect the same by suit against such executor or administrator, or by suit upon his bond; and upon collection thereof such surety shall be discharged. "^s In the case of Branch v. Rankin,'^^ "it is contended that there is no power given to appoint an adminis- trator with the will annexed, except in the cases enumerated in sections 36, 37 and 38 of the administration act; namely, the removal of an executor for misconduct, or where the person named executor by the will refuses to qualify, and where there is a vacancy in the office of executor, occasioned by death or resignation. There is the difference mentioned, that in the Rosenthal case,^^ the executor had deceased, and there had been an appointment by the court in Ohio of an administrator with the awill annexed. But this is but a difference in circum- stances between the cases, making no distinction in principle, as we regard, which should cause any variance of decision. The sections of the administration act referred to have refer- ence to the ordinary case of principal administration in this 78 — Laws of 1853, p. 164, sec. Pleas in Pickaway county, Ohio, 5; section 36, chapter 3, "Admin- against the executor of the de- istration of Estates," Starr & Cur- ceased. It was held, the allow- tis Annotated Statutes of Illinois, ance of such claim in the county Vol. 1, p. 284; Hurd's R. S. of 111,, court of Cook county, Illinois, 1905, pp. 110, 111, made it only prima facie evidence 79 — 108 111. 444, 448. against the heirs in a proceeding 80 — See Rosenthal v. Renick, 44 for leave to sell real estate. The 111. 207. In this case the claim Rosenthal case, being supported allowed by the county court of by Stone v. Wood, 16 111. 177; Cook county, Illinois, was found- Hopkins v. McCann, 19 111. 113; ed on a judgment rendered in Moline Co. v. Webster, 26 111. 234; 1860, in the Court of Common Branch v. Rankin, 108 111. 444. 366 THE LAW OF ESTATES. State, and do not apply in the ease of an ancillary adminis- tration in which the appointment was made. Sections 42 and 43 of that act, taken together, seem to contemplate that there may be the case where there is an executor in a foreign State, and an administrator with the will annexed in this State.*^ Administrator de bonis non is not liable for property wrongfuUy converted by deceased executor or administrator. An administrator de bonis non derives his title from the de- ceased person whose estate he administers upon, and not from the former executor or administrator; and it is the residuary legatees under the will who are the parties in interest, and they are the persons who have the right to prosecute the per- sonal representatives of the deceased executor for any waste or misapplication of assets.^^ 440. Death of sole executor or administrator. Section 37 of the administration act provides: "When a sole or surviving executor or administrator dies without having fully adminis- tered the estate, if there is personal property not administered, or are debts due from the estate, or is anything remaining to be performed in the execution of the will, the county court shall grant letters of administration with the will annexed, or otherwise, as the case may require, to some suitable person, to administer the estate of the deceased not already administered, and the securities on the bond of such deceased administrator shall be liable on the same to such subsequent administrator or to any other person aggrieved for any mismanagement of the estate committed to his care, and such subsequent adminis- trator may have and maintain all necessary and proper actions against the securities of such former executor or administrator for all such goods, chattels, debts and credits as shall have come to his possession and are withheld or may have been wasted, embezzled or misapplied and no satisfaction made for 81 — Branch v. Rankin, 108 111. Kirkpatrick, 14 111. 1; Marsh v. 444. People, 15 111. 284; Duffin v. Ab- 82— Bliss V. Seaman, 165 111. bott, 48 111. 17; United States v. 422, 428, 429. See also Rowan v. Walker, 109 U. S. 258. GRANTING LETTERS OF ADMINISTRATION. 367 the same. Provided, that where there is still a surviving exec- utor or administrator he may proceed to administer the estate unless otherwise provided. "^^ 441. Revocation or death of part. Section 38 of the admin- istration act provides: "Where the letters of one of several exe- cutors or administrators are revoked, or one or more of the executors or administrators die or become disqualified after the execution of any will, but before the probate thereof, or one or more of the executors or administrators die or become dis- qualilied after their appointment by the court, the court shall, on petition of the surviving husband, or wife or next of kin of the testator, or if there are none such, then upon the peti- tion of any of the beneficiaries named in such will, appoint others in their place, and require additional bonds from the new administrator, or administrators; or the survivor or sur- vivors, or such as shall not have their powers revoked, shall proceed to manage the estate. When the letters of all of them are revoked, or all of such executors or administrators die before final settlement and distribution of the estate, adminis- tration, with the Avill annexed, or de bonis non, shall be granted to the person next entitled thereto. Provided, that in making any appointment under this section, the court shall give prefer- ence to the surviving husband, or wife, or next of kin of the deceased, or beneficiaries named in the will, in the order named.s* An administrator de bonis non or with the will 83 — Section 37, chapter 3, "Ad- of property of deceased person, see ministration of Estates." As Newhall v. Turner, 14 111. 33S; amended by act approved April 1, Marsh v. People, 15 111. 284; Duf- 1887, Laws of 1887, p. 1, Starr & fin v. Abbott, 48 111. 17; Hanifan Curtis Annotated Statutes of lUi- v. Needles, 108 111. 403; Branch v. nois, with Jones & Addington's Rankin, 108 111. 444; Bliss v. Sea- Supplements thereto. Vol. 1, p. man, 165 111. 422. See also section 284; Vol. 4, p. 34, and cases cited 100, chapter 3, "Administration of under section of statute in each Estates," Starr & Curtis Annotat- volume; Kurd's R. S. of 111., 1905, ed Statutes of 111., Vol. 1, p. 327. same section and chapter, p. 111. 84 — As amended by lav/s of As to powers of an administrator 1901, p. 2; section 38, chapter 3, de honis non, and title he takes "Administration of Estates," Starr 368 THE LAW OF ESTATES. annexed succeeds to the duties and powers of the executor which result from the nature of his office as executor, but not to those in the nature of a personal trust or confidence.^^ The general rule is, that the duties and powers of an executor, which result from the nature of his office as executor, devolve upon the administrator with the will annexed. But the duties and powers, which are imposed upon an executor as a trustee, are in the nature of a personal trust or confidence reposed in him by the testator, and do not devolve upon the administra- tor with the will annexed, inasmuch as they cannot be dele- gated.^*^ 442. Liability after revocation. Section 39 of administra- tion act provides: "In all cases where any such executor or administrator shall have his letters revoked, he shall be liable on his bond to such subsequent administrator, or to any other person aggrieved, for any mismanagement of the estate com- mitted to his care; and the subsequent administrator may have and maintain actions against such former executor or administrator for all such goods, chattels, debts and credits as shall have come to his possession, and which are withheld or have been wasted, embezzled or misapplied, and no satisfac- tion made for the same."^'^ 443. Resignation of executor or administrator — settlement. Section 40 of the administration act, provides: "An executor or administrator may, upon his petition and upon giving such & Curtis Annotated Statutes of 75; section 39, chapter 3, "Admin- Illinois, with Jones & Addington's istration of Estates," Starr & Cur- Supplements thereto. Vol. 1, p. tis Annotated Statutes of Illinois, 285; Vol. 4, p. 34; Kurd's R. S. with Jones & Addington's Supple- of 111., 1905, same section and ments thereto. Vol. 1, p. 285; Vol. chapter, p. 111. 4, p. 35, and cases cited under sec- 85 — Penn v. Folger, 182 111. 76. tion of statute in each volume; 86— Hall V. Irwin, 2 Gilm. (111.) Kurd's R. S. of Illinois, 1905, p. 176; Nicoll v. Scott, 99 111. 529; 111; see Ante 426, citing section see also Munroe v. People, 102 111. 13, chapter 103, "Official Bond 406. Act." Nevitt v. Woodburn, 160 87— R. S. 1845, p. 552, section 111. 214. GRANTING LETTERS OF ADMINISTRATION. 369 notice to the legatees, devisees or distributees, as the court shall direct, be allowed to resign his trust when it appears to the county court to be proper; and upon such resignation the court shall grant letters of administration, with the will an- nexed, or de bonis non, to some suitable person, to administer the goods and estate not already administered. But no admin- istrator or executor shall be discharged till he shall have made full settlement with the court and complied with its orders, and shall deliver to his successor all money, chattels and effects of the estate in his hands not paid over according to the orders of the court. "*^ Under this statute the county court has juris- diction, and may accept the resignation of executor, and the co-executor consenting thereto, is bound by the order of such court.^^ In the case of Smith v. Smith,^'^ the following facts appear in the record. The executor resigned from office and the sole devisee consented thereto. The county court appointed no successor, but directed by its order, that the executor make settlement of his executorship, and deliver over the effects to his successor. Afterwards, a bill was filed for the purpose of contesting the will in the circuit court, and there the executor who resigned being a party to such bill, upon motion and presenting to the court the order of the county court accept- ing such resignation was dismissed from said proceedings. In the opinion of the court page 494, section 40 of the adminis- tration act was construed; it being held, the county court has power to allow an executor to resign his trust, when it appears to the court to be proper. It is to be presumed the county court did its duty and acted upon proper consideration when it accepted such resignation; especially, as the sole devisee 88 — Laws of 1849, p. 100, section under section in each volume; 1; Laws of 1853, p. 163, sec. 1; Kurd's R. S. of III., 1905, p. Ill; section 40, chapter 3, "Adminis- see also Marsh v. People, 15 111. tration of Estates," Starr & Curtis 284; Ante, sec. 29. Administration Annotated Statutes of Illinois, Act. with Jones & Addington's Supple- 89 — Davenport v. Reynolds, 6 ments thereto. Vol. 1, pp. 285, 111. App. 532. 286; Vol. 4, p. 35, and cases cited 90—168 111. 488. 24 370 THE LAW OF ESTATES. under the will consented thereto. The matter of the subse- quent accounting of the executor resigned, was a matter to be disposed of by the county court. 444. Costs. Section 41 of the administration act, provides: **The applicant for discharge shall pay all costs incurred thereby, and the court shall render a judgment against him for all such costs, which may be collected by execution, as in case of other judgments. "®i 445. Foreign executors and administrators — powers to sue. Section 42 of the administration act provides: "When any person has proved or may prove the last will and testament of any deceased person, and taken on him the execution of said will, or has obtained or may obtain administration of the estate of an intestate in any State in the United States, or in any Territory thereof, such person shall be enabled to prose- cute suits to enforce claims of the estate of the deceased, or to sell lands to pay debts, in any court in this State, in the same manner as if letters testamentary or of administration had been granted to him under the provisions of the laws of this State: Provided, that such person shall produce a copy of the letters testamentary or of administration, authenticated in the manner prescribed by the laws of Congress of the United States for authenticating the records of judicial acts in any one State, in order to give them validity in other States; and, provided, that said executor or administrator shall give a bond for costs, as in case of other non-residents."^- Suits by foreign executors or administrators are subject to same rules of pleading as those by domestic representatives.^^ Prior to 91 — Law of 1858, p. 165, sec. 5, ministration of Estates," Starr & rewritten; section 41, chapter 3, Curtis Annotated Statutes of Illi- "Administration of Estates," Starr nois. Vol. 1, p. 286. and cases & Curtis Annotated Statutes of cited; Kurd's R. S. of Illinois, Illinois, Vol. 1, p. 286; Kurd's R. 1905, p. 112. S. of ni., 1905, p. 112. 93— Collins v. Ayers, 13 111. 92— Section 42, chapter 3, "Ad- 358; U. R. & T. Co. v. Shacklet, 119 111. 232, 239. GRANTING LETTERS OF ADMINISTRATION. 371 statute cited such could not sue in this State.^^ Power is con- ferred by statute upon foreign administrator to take out execution on judgment obtained by his intestate during his lifetime.^5 Foreign administrator may collect debts due his intestate in this State, if administration is not granted to another in this State.'-^^ Such administrator from a foreign State may sue for injuries to the intestate by railroad com- pany or otherwise.^ ■^ He may appear in court in any way in which it becomes necessary for him to prosecute or defend any claim in relation to the estate he represents.^* In chancery a foreign administrator's final settlement of account in proper court of foreign State, is conclusive in his favor where a suit is brought in this State, unless such settlement shall be im- peached for fraud.^^ Letters of foreign administrator may be proved under Act of Congress,^ or may be proved by examined copy of the record of appointment, satisfactorily proved by oral testimony to be true.2 446. Exception when letters granted here. Section 43 of the administration act provides: "Nothing contained in the preceding section shall be so construed as to apply to cases where administration is obtained upon the estate of any in- testate nor where letters testamentary are granted in this State; and when, after any suit is commenced by any admin- istrator or executor under the provisions of the preceding section, and before final judgment thereon, administration is had, or execution undertaken within this State, under the laws of the same, upon the estate of any decedent, upon suggestion 94 — People v. Peck, 3 Scam. 99 — Fryrear v. Lawrence, 5 (III.) 118; Judy v. Kelly, 1 111. Gilm. (111.) 325. 211; Collins v. Ayers, 13 111. 358. i_oollins v. Ayers. 13 111. 358. 95— Keefer v. Mason, 36 111. 406. 2— U. R. and T. Co. v. Shacklett, 96— Hickox v. Frank, 102 111. 119 111. 232, 240. See also 1 Green- 660. leaf on Evidence, 501; Freeman 97_Wabash R. R. Co. v. Shack- on Judgments, sec. 408; 1 Wharton lett, 10 111. App. 404. on Evidence, sees. 94, 98; Abbott 9g — Decker v. Patton, 20 111. on Trial Evidence, pp. 25, 536. App. 210. 372 THE LAW OF ESTATES. of such fact, entered of record, the said resident, administra- tor or executor shall, upon motion, be substituted as party to such suit; and thereupon the court shall proceed to hear and determine the same, as if it had been originally instituted in the name of the said resident, executor or administrator, and the benefits of the judgment, order or decree shall enure to him, and be assets in his hands. "^ 3 — Laws of 1845, p. 597, sec. Starr & Curtis Annotated Statutes 3, rewritten; section 43, chapter of Illinois, Vol. 1, p. 287; Kurd's 3, "Administration of Estates," R. S. of 111., 1905, p. 112. CHAPTER XXII B^VENTORIES AND APPRAISEMENTS Sec. 447. Inventories and appraise- ments. 448. The title of the administra- tor. 449. Each case arising makes the rule, no unbending rule. 450. Life insurance and certifi- cates of benefit. 451. What are personal assets. 452. Growing crops. 453. Concerning the species of property. Sec. 454. Supplemental inventory. 455. Warrant of appraisal. 456. Oath, appraisal. 457. Return of appraisal. 458. Inventory, etc., evidence. 459. Further appraisal. 460. Liabilities of executors and administrators. 461. Compensation. 462. When assets do not exceed widow's allowance, new as- sets. 447. Inventories and appraisements. "Whenever letters tes- tamentary, of administration, or of collection are granted, the executor or administrator shall make out a full and perfect inventory of all such real and personal estate, or the proceeds thereof, as are committed to his superintendence and manage- ment, and as shall come to his hands, possession or knowledge, describing the quantity, situation and title of the real estate, and (Particularly specifying the nature and amount of all annuities, rents, goods, chattels, rights and credits and money on hand, and whether the credits are good, doubtful or desper- ate; which said inventory shall be returned to the office of the clerk of the county court, within three months from the date of the letters testamentary or of administration."^ Under this and other sections of the statute cited,^ it is very important 1 — R. S. 1845, p. 554, sec. 81; & Addington's Supplements there- sections 51 and 122, chapter 3, to, Vol. 1, pp. 289, 290, and cases "Administration of Estates." cited; Vol. 4, p. 35, and cases 2— (1.) Starr & Curtis Annotat- cited; Kurd's R. S. of 111., 1905, ed Statutes of Illinois, with Jones same section and chapter, p. 113. 373 374 THE LAW OF ESTATES. that a full and perfect inventory be presented and filed. The inventory required by the statute should include specifically the entire assets of the estate as far as discovered coming to the knowledge of, or in hands of executor or administrator or under their management or control. This instrument should enable the court to trace the assets with which the legal rep- resentative of the estate is chargeable; or, might be so after proper diligence. Particularly should such instrument specify all real and personal estate, the proceeds thereof, the nature and amount of all annuities, rents, goods, chattels, rights and credits, money on hand, and whether the credits are good, doubtful or desperate? 448. The title of the administrator. He takes no title to realty, but a naked power to subject the real estate for sale to pay debts in case of an insufficiency of personalty.* The title to the lands of the deceased vests eo instanti in the heirs on the ancestor's death.-^ Rents of real estate accruing after death pass to heirs and devisees and not to administrator.^ The executor or administrator by virtue of his office takes the absolute title to the personal estate, and is the sole repre- sentative thereof, and after the payment of debts must with the aid of court distribute the same.''' 449. Each case arising makes the rule — there is no unbend- ing rule. It will be found on an examination of the cases, that (2.) Starr & Curtis Annotated 3 — Maynard v. Maynard, 96 111. Statutes of Illinois, with Jones & App. 478. Addington's Supplements thereto, 4— Noe v. Montray, 170 111. 169; Vol. 1, pp. 314, 315, and cases Burr v. Bloemer, 174 111. 638. cited; Vol. 4, pp. 39, 40, and cases ^ „ , ■„ , .„„ .„ •^ A TT A> x> o r.f Tin ^ic 5— People V. Brooks, 123 111. cited; Hurds R. S. of Illinois, ^r-, ^ t^ 251; Rupp V. Rupp, 11 Colo, Ct. of App. 36. 1905, p. 118. (3.) Starr & Curtis Annotated Statutes of Illinois, with Jones & 6— Richardson v. Richardson, 87 Addington's Supplements thereto, ^l- App. 358; Hoagland v. Crum, Vol. 1, pp. 336, 337, 338, and cases ^^^ J^"- '^'^^• cited; Vol 4, pp. 43, 44, and cases 7 — Gold v. Bailey, 44 111. 429; cited; Vol. 5, p. 112, and cases Wells v. Miller, 45 111. 383; Rail- cited; Kurd's R. S. of 111., 1905, road Co. v. Woodward, 4 Colo. 1. p. 123. INVENTORIES AND APPRAISEMENTS. 375 the executor or administrator is lei't to depend largely upon what may; be required for the attainment of justice in each case as it arises to determine whether property is real, personal or mixed, and what steps must be taken by such representa- tives to bring the property of the decedent under their super- vision and management. Thus money due upon a contract from sale of lands, although no deed has been executed is assets that may go to the administrator.^ And it is held, that if the administrator improperly collects rents from lands, and the heirs choose to treat such rents collected as assets for the payment of debts, the administrator cannot complain of being charged with the rents, particularly so where such money has been used in paying debts of the estate.^ The administrator takes the property, in the condition he finds it, or as it is left by the decedent; and if such property is subjected to a lien,, such follows the property in the hands of the administrator.^" If the administrator buys a leasehold with his own funds and takes title in his own name, accounting for such as assets of the estate he represents, he may be permitted to retain the amount paid for the leasehold under the circumstances from the rent that came to his hands; but he will be estopped from denying that the leasehold is an asset of the estate.^ ^ In the interesting case of Wells v. Miller, administrator,^^ an action of trover was commenced for the tortious taking of a quantity of lumber. The record shows that the decedent and the defendants were residents of the State of Illinois; that decedent was personally in charge of the cargo of lumber in question, transporting the same from Illinois to the State of Tennessee; that while in transitu, and on the Missouri shore, the decedent died, leaving no assets or creditors residing else- where than in Illinois, and that no administration had been 8 — Skinner v. Newberry, 51 111. 251; First National Bank v. Gage, 203. 93 111. 175; Henry v. Eddy, 34 111. 9 — Goeppner v. Leitzelman, 98 508. 111. 414, 11— Willenborg v. Murphy, 36 10— People V. Brooks, 123 111. 111. 345. 12—45 111. 382. 376 THE LAW OF ESTATES. taken out in either of the States, Missouri or Tennessee, to which latter State the property was taken by defendants and sold, the proceeds of the sale being brought to Illinois. The court in passing upon this state of facts, hold: That if the property of the decedent after his death in Missouri, was at any time, while in transitu within the limits of the State of Illinois, it became assets in this State, and the title of the administrator here attached by relation, the moment letters were issued. The law applied being, that property coming from a foreign jurisdiction into that of the domicile imme- diately vests in the administrator there, if letters have not been taken out in such foreign jurisdiction.^^ "According to the common course of commercial business, ships and cargoes, and the proceeds thereof, locally situate in a foreign country at the time of the death of the owner always proceed on their voy- ages and return to the home port, without any suspicion that all the parties concerned are not legally entitled to act; and they are taken possession of and administered by the adminis- trator of the forum domicilii, with the constant persuasion that he may not only rightfully do so, but that he is bound to administer them as part of the funds appropriately in his hands. A different course of administration would be at- tended with almost inextricable difficulties, and would involve this extraordinary result, that all the personal property of the deceased must be deemed to have a fixed situs where it was at the moment of his death, and if removed from it must be returned thither for the purpose of due administration. "^ * There is no unbending rule in regard to property having no fixed situs, the jurisdiction of the administrator is left to de- pend largely upon what may be required for the attainment of justice in each case as it arises.^ ^ In the case of Abbott v. The People, ^^ the record shows appellants were appointed adminis- 13 — Story's Conflict of Laws, Laws, sec. 520, and cases cited in section 520. notes. 14 — The rule as formulated by 15 — Wells v. Miller, Adm., 45 Story in his work, Conflict of 111., p. 388. 16—10 111. App. 62. INVENTORIES AND APPRAISEMENTS. 377 trators of D's estate in Fulton County, Illinois. Subsequently appellee was appointed administrator of L's estate in Knox County, Illinois, and demanded of appellants possession of certain property, promissory notes, as belonging to the estate of his intestate. Held, that as the property belonged to the estate of L the county court of Knox county had jurisdiction, and appellants were in fault in reporting such property as assets of the estate of D. To realize on an estate, the executor or administrator should inventory every possible species of property belonging thereto, and in which deceased had any interest.^' 450. Life insurance and certificates of benefit. Life insur- ance made payable to the ''legal representatives" of the in- sured, goes to the administrator, who takes the money to be 17 — Auburn State Bank v. Brown, 172 111. 284; McCollister V. Green County Bank, 171 111. 608; Waughup v. Bartlett, 165 111. 124; Dinsmoor v. Bressler, 164 111. 211; Maynard v. Maynard, 96 111. App. 478. In the case of Mc- Collister V. Green County Bank, supra, the county court entered an order requiring the administrator of the estate in question to inven- tory certain tracts of land, as the property of the decedent at the time of his death and to file a pe- tition, under the statute, for a decree and order of sale of ranch land required to be inventoried, and from this order an appeal was taken. In passing on this case the court holds: The administra- tor had no such interest as was necessary to enable him to prose- cute the appeal. The sole reason urged by the administrator why the judgment appealed from should be reversed was that the decedent, though vested with the possession of the lands in contro- versy during his lifetime and at the time of his death, had but a life estate therein. Held, in that case the administrator had no such interest as would entitle him to an appeal from an order direct- ing him as administrator, to take necessary steps, under the statute, to bring the contention before the county court for determination, and such an order is not a griev- ance of which he may be heard to complain. It is a rule well estab- lished, that the right to relief by appeal exists only in favor of a party whose rights have been prejudiced by the judgment ap- pealed from. And see the follow- ing cases in point: Combs v. Jef- ferson Pond Draining Co., 3 Mete. (Ky.) 72; Stewart v. Codd, 58 Me. 86; Elliott on Appellate Proc, sees. 135, 292; Woerner on Am. Law of Administration, sec. 545; Am. & Eng. Ency. of Law, p. 619, and cases cited in notes. 378 THE LAW OF ESTATES. paid out in due course of administration.^^ "Legal repre- sentatives" mean executors or administrators.^^ A benefit certificate provided for the payment of one assessment, not ex- ceeding $5,000 on the death of the certificate holder, "to his devisees, as provided in last will and testament, or, in the event of their prior death, to the legal heirs of the certificate holder"; and the certificate holder by his will gave the pro- ceeds of the certificate to a trustee in trust for his legal heirs, after first keeping the fund at interest till his wife died and his youngest child became 20 years of age, and paying such interest to his wife. The same person who was appointed trus- tee was also made executor of the will. Held, that the fund was not assets of the estate, and the executor, as such, was not entitled to it. He would however in the capacity of trustee take under the trust created.^^ 451. What are personal assets. Usually such are easily determined without difficulty. But the exception occasionally arises, as -shoAvn in the preceding and the following section. Where the question is raised, it is made necessary to determine the same by legal construction. As before stated, there is no unbending rule in regard to property having no fixed situs. Yet it will be found that many well established rules for the attainment of justice are applied for that end and purpose. The general rule is to the effect, that all personal estate, for the purpose of administration must be treated as assets. There are, however, exceptions to this rule for the statute law of Illi- nois, declare that damages for wrongfully causing the death of a party, are not assets, and creditors have no interest in such damages when recovered. Actions for damages to the person or property of the deceased are brought by the legal repre- sentatives of the deceased under the statute, and are exclus- ively for the "benefit of the widow and next of kin of such 18— Johnson v. Van Epp, 110 111. 19— People v. Phelps, 78 111. 149. 553; Murray v, Strang, 28 111. App. 20— People v. Petrie, 191 111. 612. 497; Same v. Same. 94 111. App. 652. INVENTORIES AND APPRAISEMENTS. 379 deceased person. "^^ These actions by statutory enactment sur- vive in addition to those which survive by common law. Re- plevin, damages for injury to the person (except slander and libel), damages for an injuiy to real or personal property, or for the detention or conversion of personal property, and actions against officers for malfeasance or non-feasance of themselves or their deputies, and all actions for fraud or de- ceit.22 452. Growing crops. As between executor or administrator and heir, statute makes growing crops personal property .^^ 21 — See sections 1 to 5, chapter able, viz.: Robinson v. Weeks, 6 70, "Injuries." See section 122, How. Pr. 161; Hall v. Cincinnati chapter 3, "Administration of Es- Railroad Co., 1 Disney 58; More v. tates." Starr & Curtis Annotated Massini, 32 Cal. 590; National Ex- Statutes of Illinois, with Jones & change Bank v. McLoon, 73 Me. Addington's Supplements thereto, 498; Weire v. Davenport, 11 Iowa Vol. 2, pp. 2155 to 2161, and cases 49; Fried v. N. Y. Cent. R. R. Co., cited; Vol. 4, pp. 679, 680, and 43 N. Y. Sup. Ct. 1; Vimont v. Chi- cases cited; Vol. 5, p. 294, and cago & Northwestern Ry. Co., 64 cases under general notes, p. 312, Iowa 513; Gray v. McAllen, 4 Iowa and cases cited under section 2 of 497; Zagbaum v. Parker, 66 Barb, statute; Hurd's R. S. of 111., 1905, 341; Brady v. Whitney, 24 Mich, same sections and chapter, pp. 154; Grant v. Ellis, 26 Mich. 201; 1152, 1153. See also section 123, Final v. Backus, 18 Mich. 218; chapter 3, entitled "Administra- Brackett v. Griswold, 103 N. Y. tion." Starr & Curtis Annotated 425; Stewart v. Houston and Tex- Statute, etc.. Vol. 1, pp. 344, 345, as Central Ry. Co., 62 Tex. 246; and cases cited; Hurd's R. S. of Railroad Co. v. Freeman, 57 Tex. 111., 1905, p. 125. 156; Choteau v. Boughton, 100 Mo. 22— Bunker v. Green, 48 111. 406; Schneider v. Wabash, St. 243; Holton v. Daly, 106 111. 131; Louis and Pacific R. R. Co., 86 Wehr v. Brooks, 21 111. App. 115; Mo. 613; Chicago and Eastern Illi- Garvey v. Coughlin. 92 111. App. nois R. R. Co. v. Beaver, Adm., 582; C. & B. I. R. R. Co. v. O'Con- 199 111., 34, 38; Mattoon Gaslight nor, 19 111. App. 591; Same v. and Coke Co. v. Dolan, 105 111. Same, 119 111. 586; Northern Trust App. 3. Co. V. Palmer, 171 111. 387; Forest 23— Powell v. Rich, 41 111. 466; City Ins. Co. v. Hardesty, Admr. Creel v. Kirkham, 47 111. 345; see 182 111. 39; North Chicago Street section 94, chapter 3, "Adminis- R. R. Co. V. Ackley, 171 111. 100, tration of Estates," Starr & Cur- and authorities cited on page 106; trs Annotated Statutes of Illinois, showing cause of action is assign- Vol. 1, p. 321; Hurd's R. S. of 111., 1905, p. 120. 380 THE LAW OF ESTATES. Where rent or its equivalent is to be paid out of the crops raised, there is a letting for the raising of the crop, a par- ticipation in the profits of the land yield. Such does not amount to a lease, but is held to be a contract between the owner and the occupier who are treated as tenants in com- mon of the crop.24 453. Concerning the species of property. It will be found by an examination of the cases, that decisions as to kinds and species of property are generally fixed to fit the particular case under consideration. Such cases involve questions of law and facts, the controlling facts influencing the legal finding. It is unnecessary to enumerate articles that have been held fixtures, for the courts decide such questions as they arise from the evidence given by scientific witnesses and others taken from the arts, trade, manufacturing and other business capable of aid- ing the court in such matters. The nature of the improve- ment if it be a building, the conditions of the country, the intention and agreement of the parties, the relation of the build- ing to the land upon which it stands, as to whether the con- struction of the building indicates it was intended for mov- ing or not; all such facts and others impress the court and somewhat direct it fimdings. So the fact may be established the land belongs to one person and the building to another, and these parties by some agreement arranged for the moving upon stipulated notice or at the end of a certain term. Fix- tures attached to building permanently as a general rule are considered a part of the realty. But where such are found to be personalty, the established facts and the law applied set- tle the question. These cases relating to fixtures often arise be- tween vendor and mortgagor and vendee and mortgagee, and may or may not be under the supervision and management of an administrator or executor. But where they are a part of a decedent's estate they must like all other property, be regu- 24 — Alwood V. Buckman, 21 111. Cheney v. Roodhouse, 32 111. App. 200; Creel v. Klrkham, 47 111. 345; 49. INVENTORIES AND APPRAISEMENTS. 381 larly inventoried and accounted for as cither real or personal property of the deceased.^s 454. Supplemental inventory. Section 52 of the Adminis- tration act provides: "If, after making the first inventory, any real or personal estate of the deceased comes to his pos- session or knowledge, he shall file a similar additional inven- tory thereof, "^e 455. Warrant of appraisal. Section 53 of the Administra- tion act provides: "On granting letters testamentary, or of administration, a warrant shall issue, under the seal of the county court, authorizing three persons of discretion, not re- lated to the deceased nor interested in the administration of the estate, to appraise the goods, chattels and personal estate of the deceased, known to them or to be shown by the execu- tor or administrator; which warrant shall be in the following form, to wit:" (form given) "And on the death, refusal to act, or neglect of any such appraiser, another may be ap- pointed in his place."-" The court cannot make an appraise- ment, that power is conferred upon the statutory appraisers appointed by the court. But the court may set the appraise- ment aside and order a new one.^s 456. Oath — appraisal. Section 54 of the administration act provides: "The appraisers before they proceed to the ap- 25 — Clark v. Burnside, 15 111. rewritten; section 52, ctiapter 3, 62; Goff V. O'Connor, 16 111. 423; "Administration of Estates," Starr Palmer v. Forbes, 23 111. 301; & Curtis Annotated Statutes of Moore v. Smith, 24 111., 513; Smith Illinois, Vol. 1, p. 290; Kurd's R. V. Moore, 26 111., 393; Dooley v. S. of 111., 1905, p. 114. Crist, 25 111., 551; Ogden v. Stock, 27— Section 53, chapter 3, "Ad- 34 111., 522; Kelley v. Austin, 46 ministration of Estates," Starr & 111., 159; Matson v. Griffin, 78 111. Curtis Annotated Statutes of lUi- 479; Arnold v. Crowder, 81 111. nois, with Jones & Addington's 58; Chapman v. U. L. I. Co., 4 111. Supplements thereto. Vol. 1, p. App. 35; Chitty on Contracts, 316; 291; Vol. 4, p. 35, and cases cited Taylor's Landlord and Tenant, sec. under section of statute in each 544, and cases cited. volume: Kurd's R. S. of 111., 1905, 26— R. S. 1845, p. 555, sec. 86, p. 114. 28— Miller v. Miller, 82 111. 463. 382 THE LAW OF ESTATES. praisement of the estate, shall take and subscribe the follow- ing oath, (or affirmation), to be annexed or endorsed on the said warrant, before any person authorized to administer an oath, viz: (oath set forth). After which, the said appraisers shall proceed, as soon as conveniently may be, to the discharge of their duty, and shall set down each article, with the value thereof in dollars and cents, as aforesaid. All the valuations shall be set down on the right hand side of the paper, in one or more columns, in figures, opposite to the respective arti- cles of property, and the contents of each column shall be cast up and set at the foot of the respective columns."-^ 457. Return of appraisal. Section 55 of the Administration act provides: "When the bill of appraisement is completed, the appraisers shall certify the same under their hands and seals, and shall deliver the same into the hands of the executor or administrator, to be by him returned into the office of the clerk of the county court, within three months from the date of his lettei's."3o 458. Inventories, etc., evidence. Section 56 of the Admin- istration act provides: "Inventories and bills of appraise- ment and authenticated copies thereof, may be given in evi- dence in any suit by or against the executor or administrator, but shall not be conclusive for or against him, if any other testimony be given that the estate was really worth, or was bona fide sold for more or less than the appraised value thereof. "31 459. Further appraisal. Section 57 of the Administration act provides: "Whenever personal property of any kind, or 29— R. S. 1845, p. 554, sec. 83; tated Statutes of Illinois, Vol. 1, sec. 54, chapter 3, "Administration p. 291; Kurd's R. S. of Illinois, of Estates," Starr & Curtis Anno- 1905, p. 114. tated Statutes of Illinois, Vol. 1, 31— R. S. 1845, p. 555, sec. 85; p. 291; Kurd's R. S. of 111., 1905, sec. 56, chapter 3, "Administration p. 114. of Estates," Starr & Curtis Anno- 30— R. S. 1845, p. 554, sec. 84; tated Statutes of Illinois, Vol. 1, sec. 55, chapter 3, "Administration p. 291; Kurd's R. S. of 111., 1905, p. of Estates," Starr & Curtis Anno- 114. INVENTORIES AND APPRAISEMENTS. 383 assets, shall come to the possession or knowledge of any exe- cutor or administrator, which are not included in the first bill of appraisement as aforesaid, the same shall be appraised, and return thereof made to the oflSce of the clerk of the county court in like manner within three months after discovery of the same. "32 460. Liabilities of executors and administrators, etc. Sec- tion 58 of the Administration act provides: "Executors and administrators shall be chargeable with so much of the estate of the decedent, personal or real, as they, after due and proper diligence, might or shall receive. "^^ 461. Compensation. Section 59 of the Administration act provides: - "Every appraiser appointed under this act shall be entitled to the sum of $2 per day for each day's neces- sary attendance in making all such appraisements, to be al- lowed by the county court, and paid upon its order by the executor or administrator. "^'^ Executore and administrators are liable for lack of ordinary care in collection of debts due estate.35 And they are liable to stranger for fraudulent act of their agents.^^ They must account for all profits where funds of estate are used.^'^ 462. When assets do not exceed widow's allowance — ^new assets. This section is intended to be a part of Section 59 of 32— R. S. 1845, p. 555, sec, 86; tated Statutes of Illinois, with sec. 57, chapter 3, "Administration Jones & Addington's Supplements of Estates," Starr & Curtis Anno- thereto. Vol. 1, p. 292; Vol. 4, p. tated Statutes of Illinois, Vol. 1, 39, Hurd's R. S. of 111., 1905, pp. p. 292; Hurd's R. S. of 111., 1905, 114, 115. P- ^^^- 35— Whitney v. Peddicord, 63 33-R. S. 1845, p. 556, sec. 92; jj, 249. Borders v. People, 31 111. sec. 58, chapter 3, "Administra- . .„„ tion of Estates," Starr & Curtis Annotated Statutes of Illinois, 36— Mungate v. Reynolds, 72 111. 292, and cases cited; Hurd's R. S. 425. of III., 1905, p. 114. 37— Wingate v. Pool, 25 111. 118; 34— R. S. 1845, p. 555, sec. 87; Whitney v. Peddicord, 63 111. 249; sec. 59, chapter 3, "Administration Goeppner v. Leitzelman, 98 111. of Estates," Starr & Curtis Anno- 409; the latter case, being where 384 THE LAW OF ESTATES. the administration act and is as follows: "If the adminis- trator or executor of an estate discovei-s, at any time after an inventory and appraisement of the property is made, that the personal property and assets of the estate do not exceed the amount of the widow's allowance, after deducting the necessary expenses incurred, such administrator or executor shall report the facts to the court, and if the court finds the report to be true, he shall order said property and assets to be delivered to the widow by the administrator or executor, and discharge the executor or administrator from further duty; but such executor or administrator shall first pay out of the property and assets the cost and expense of adminis- tration. After the court orders the delivery of such property and assets to the widow, the clerk of said court shall make and deliver to her a certified copy of the order, under seal, which shall vest her with complete title to said property and assets, and enable her to sue for and recover the same in her own name and for her own use. Such widow shall not be liable for any of decedent's debts or liabilities, excepting the funeral expenses of the deceased. If, upon affidavit being filed with the clerk of said court, that such administrator or execu- tor fails or refuses to report in any case provided for in this section, the court may order a citation and attachment to is- sue as in other eases of a failure of administrators to report. And on a discovery of new assets, administration may be granted as in other cases, and charged to the account of the estate. "38 the administrator collected rents, tration of Estates," Starr & Cur- and was charged with the same. tis Annotated Statutes of Illinois, 38 — This section, though sepa- with Jones & Addington's Supple- rated from is undoubtedly a part ments thereto. Vol. 1, pp. 310, of section 59, chapter 3, "Admin- 312; Vol. i, pp. 38, 39; Vol. 5, p. istration of Estates," Starr & Cur- 19, and cases cited under sections tis Annotated Statutes of Illinois, of statute in each volume; Hiird's Vol. 1, pp. 292, 293 and ca.ses cited R. S. of 111., 1905, p. 117; Wood v. under section. Kurd's R. S. of 111., Johnson, 13 111. App. 548; Little 1905, pp. 114, 115. See also sec- v. Williams, 7 111. App. 67; Brown tions 74, 75, chapter 3, "Adminis- v. Morgan, 84 111. App. 233. CHAPTER XXIII CLAIMS AGAINST ESTATES Sec Sec. 463. Claims against estates, no- 477. tice, adjustment. 478. 464. The filing of claims, time, ef- fect. 479. 465. Written pleadings not re- 480. quired in probate court or 481. on appeal to circuit court. 466. Probate and County courts, in such matters have equit- able powers. 482. 467. Admissions by an executor or administrator cannot bind estate. 483. 468. Allowance of claim effect. 469. Heirs' right to contest claim. 484. 470. Judgment recovered in an- other State, effect of. 471. Execution should not be or- dered against executor or 485. administrator. 486. 472. A citizen of another State may proceed to establish 487. debt against an estate In 488. the Federal court. 473. Claims afterwards presented, process. 489. 474. Service, continuance. 475. Trial costs. 476. Oath of claimant may be re- quired. 490. Evidence. Demands against claimant — set off. Claims not due. Appeals. When judge interested or a witness. Demands classified, as to classes or claims, limita- tions. Adjudication and judgment, effect of as between claim- ant and representative as to personal estate. Reason why allowance of claim is conclusive against personal estate. Where the deceased has re- ceived money in trust. Priority of payment. Demands or claims of execu- tor or administrator. Entries, classing, payment be- fore allowance, effect. Expense incurred by execu- tor or administrator in erecting head stone at grave of deceased, considered proper. Partnership claim. Sec. 463. Claims ag-ainst estates, notice — adjustment. "Every administrator or executor shall fix upon a term of the court within six months from the time of his being: quali- fied as such administrator or executor, for the adjustment of 25 385 386 THE LAW OF ESTATES. all claims against such decedent, and shall publish a notice thereof for three successive weeks in some public newspaper published in the county, or if no newspaper is published in the county, then in the nearest newspaper in this state, and also by putting up a written or printed notice on the door of the court house, and in five of the most public places in the county, notify- ing and requesting all persons having claims against such estate, to attend at said term of court for the purpose of having the same adjusted (the first publication of said notice to be given at least six weeks previous to said term) when and where such claimant shall produce his claim in writing; and if no objection is made to said claim, by the executor, administra- tor, widow, heirs, or others interested in said estate, and the claimant swears, that such claim is just and unpaid, after al- lowing all just credits, the court may allow such claim with- out further evidence, but if objection is made to such claim the same shall not be allowed without other sufficient evidence. The court may allow either party further time to produce evi- dence in his favor, and the case shall be tried and determined as other suits at law. Either party may demand a jury of either six or twelve men to try the issue, and it shall be the duty of the county clerk, when a jury is demanded, to issue a venire to the sheriff of the county to summon a jury, to be com- posed of the number demanded. "^ 1— Section 60, Chapter 3, "Ad- - (2) See also sections 36, 37, 39, ministration of Estates," as chapter 77, entitled "Judgments amended by act of May 21, 1887. and Decrees." Vol. 2, pp. 2370, In force July 1, 1887. See R. S. 2371, and cases cited; Vol. 4, p. of 1845, p. 556, sec. 95; Laws of 754, and cases cited; Vol. 5, p. 1859, p. 95. sec. 12; Laws 1887, p. 334; Kurd's R. S. of 111., 1905, p. 1, sec. 60; Starr & Curtis Anno- 1258. (3) See also sections 10 to tated Statutes of Illinois, with 13, chapter 1, "Abatement," Starr Jones & Addington's Supplements & Curtis Annotated Statutes, etc., thereto. Vol. 1, p. 293, and cases Vol. 1, pp. 247 to 254 and cases cited under section of statute; cited; Vol. 4, pp. 25, 26, 27, and Vol. 4, pp. 35, 40 and cases cited; cases cited; Kurd's R. S. of 111., Vol. 5, p. 17 and cases cited; 1905, pp. 97, 98. Smith v. Mc- Hurd's R. S. of 111., 1905, p. 115. Laughlin, 77 111. 596. CLAIMS AGAINST ESTATES. 387 464. The filing of claims — time — effect. Claims against estates under statute must be presented in the manner pointed out by the statute.^ Delay in presenting claim will always be considered by the court. The delay in presenting the claim was regarded as so important a circumstance for the considera- tion of the juiy in determining whether the claim ought to be paid, that a modification by the court below of an instruction asked on behalf of the estate, which would be likely to exclude the consideration by the jury of that circumstance, was held to be ground for reversal of the judgment allowing the claim.^ Where a claim was presented after the lapse of two years from the time of publication of notice to present claims and of the granting of letters of administration, by the express terms of the statute, claims not filed against an estate and exhibited to the court within two years (the statute being now one year) were barred as to any dividend, except as to subsequently dis- covered assets not inventoried or accounted for.* Section 60 of the administration act and that of section 2 of the assignment act, relating to voluntary assignments was construed as similar in intent and meaning, it is held that claims against an estate which have been assigned for the benefit of creditors, whether due or to become due, must be presented within three months of the time of publication of notice, as provided for in that act, or the same cannot participate in dividends until after the pay- ment of all claims presented within that time and allowed by the court.^ If a different rule should be applied, then in con- tingent claims like this, where years might elapse before the amount of the claim was determined as against the creditor, to allow petition to stay dividends would render the settlement of insolvent estates the work of years, instead of being determined 2— Windslow v. Leland, 128 111. Land and Cattle Co., 154 111. 220. 304. 4— O'Connor v. O'Connor, 52 111. 3— O'Connor v. O'Connor, 52 111. 316. 316; and see the following cases 5 — Rassieur v. Jenkins, 170 111. aflBrming the law in O'Connor 503. See note 1 (Ante 463), sec. case: Stone v. Clark's Admrs., 2, chap. 10, "Assignment Act," 40 111. 411; Snydacker v. Swan Kurd's R. S. of 111. 1905, p. 172. 388 THE LAW OF ESTATES. with dispatcK, as was the evident intent of the act. Claimant's recovery is limited to amount of claim filed; the order of pro- bate or county court allowing a claim is a judgment of that court bearing interest at legal statutory rate.® A claim once filed and dropped from docket, without order disposing of it, may be re-docketed on notice to executor or administrator.'^ However large the claim may be the probate or county court has jurisdiction to adjudicate it.^ In Colorado, where claim was presented after the statutory period of two years, it was held error, to permit such claim to be amended.^ 465. Written pleadings not required in Probate Court or on appeal to Circuit Court. The pleadings of a claimant in a proceeding in the probate court for a judgment against an estate is the claim prepared in accordance with the provisions of section 60 of Chapter 3, entitled " Administration. "^^ Plead- ing is a statement, in the legal form, of the facts which consti- tute the plaintiff's cause of action or the defendant's ground of defense.^ 1 The amount set forth as the alleged indebtedness in a claim filed against an estate should be given like effect as an ad damnum in a declaration, and that the amount of recovery should be limited accordingly. Affidavit of amount due is essen- tial to a proper or valid presentation of claim under statute.^ ^ But the general rule applicable to the probate and county courts, and on appeals therefrom to the circuit court in the matter of the trial of claims, is to the effect, that written plead- ings are improper or are not required; the rules of practice of such courts and the decisions so hold.^^ It is held to be the 6— Russell V. Hubbard, 59 111. 10— Hall v. Hale, 202 111. 328; 325; Mitchell v. Mayo, 16 111. 83; see Statute citation 1, ante 463. Wheeler v. Dawson, 63 111, 54. 11—22, Am. & Eng. Ency. of 7-McCall V. Lee, 120 111. 261. ^^^' ^^ ^^' ^^^' ^""^ ""^^^^ ""'^^^ in notes. 8— Manna v. Yocum, 17 111. 387; 12— Russell v. Hubbard, 59 HI. Tewalt V. Irwin, 164 111. 596. 335; smith v. Goodrich, 167 111.51. 9— Dickey v. Dickey, 8 Colo. Ct. 13— Thorp v. Goewery, 85 111. of App. 141. 611; Thompson v. Black, 200 111. 469. CLAIMS AGAINST ESTATES. 389 duty of the legal representatives of an estate, on the trial of claims against estate, to interpose the statutes of limitation against any claim or demand where such is a defense. But if the executor or administrator fail so to do, the heirs, devisees, purchasers or those interested may interpose the limitation act.^* 466. Probate and County Courts in such matters have equitable powers. In the matter of hearing and adjudication of claims the probate and county courts have equitable jurisdic- tion and such power is specially conferred upon such courts in the matter of adjudicating claims against estates, it is conferred so that such courts may do full justice between the parties and adopt when necessary, chancery procedure.^ ^ 467. Admissions by an administrator or executor cannot bind estate. Such legal representatives of an estate cannot bind an estate by their admissions of a claim.^^ Nor can they submit claim to arbitration and bind estate.^'^ A court of chancery in a proper proceeding will set aside a claim obtained by fraudulent collusion between claimant and executor or administrator.^^ 468. Allowance of claim effect of. The allowance of a claim as against the personal estate is conclusive until reversed by a superior tribunal, or unless impeached for fraud, accident or mistake.i^ But so far as real estate is concerned, the allow- ance of a claim is merely pritna facie evidence of the debt due by the estate.-^ And it must be remembered that the probate 14— McCoy v. Morrow, 18 111. 17— Retzell v. Miller, 25 111. 67; 519. Clark v. Mogle, 52 111. 427. 15— In re Estate of Steel, 65 III. 18— Elting v. Bank, 173 111. 391; 322; People v. Harrison, 82 111. Strauss v. Phillips, 189 111. 578. 84; People v. Phelps, 78 111. 147; 19— Cook v. Wood, 24 111. 295; Miller v. Simons, 71 111. App. 379; Stone v. Wood, 16 111. 177; Gould Ingram v. Ingram, 172 111. v. Bailey, 44 111. 491; Wheeler v. 292; Henry v. Caruthers, 196 111. Dawson, 63 111. 54; Ward v. Dun- 131; Marshall v. Marshall, 11 ham, 134 111. 195; Schlink v. Max- Colo. Ct. of App. 505. ton, 153 111. 447; Sherman v. 16— Marshall v. Adams, 11 111. Whiteside, 190 111. 576. 37. 20— Noe v. Moutry, 170 111. 169; 390 THE LAW OF ESTATES. courts have such equitable jurisdiction in the administration of estates, that they may, in a proper case, on motion, and at a subsequent term, set aside an order allowing a claim where fraud or mistake has intervened.21 469. Heir's right to contest claim. Allowance of claim in probate court is not conclusive upon heir, where real estate is sought to be sold; such may contest when he is sought to be charged, and generally the administrator is bound to protect his interest; and if such does not in a proper proceeding a court of chancery will.^- An infant's right to maintain a bill in chancery to impeach a decree will arise when his rights are prejudiced by the decree entered.^^ And it is held where an offer is made to indemnify a minor against loss, after re- sale of real estate is ordered, it comes too late, even if it could have any force whatever, 2^ Heir cannot bring suit upon debt due his ancestor.^s 470. Judgment recovered in another state effect of. A judg- ment recovered in another state against administrator appointed in this state, cannot be enforced against the estate here; and such judgment is no evidence of indebtedness against another administrator in another state.^^ 471. Execution should not be ordered against executor or administrator. A judgment of the Probate Court against an estate should be ordered paid in due course of administration; no execution should be issued against representatives of estate arising on judgment for claim allowed.^®* A creditor whose Ford V, First National Bank, 201 23— Johnson v. Buck, 220 111. Ill, 128, 129, and cases cited. 226. 21— Sherman v. Whiteside, 190 24— Compton v. McCaffree, 220 111. 576; Elting v. Bank, 173 111. 111. 137; Jolly v. Graham, 222 111, 388; Strauss v. Phillips, 189 111. 550. 578, 25— Hall v. Cowle's Estate, 15 22— Motsinger v. Coleman, 16 111. Colo. 343. 71; Moline Water & Power Co. v. 26— Judy v. Kelley, 11 111. 211; Webster, 26 111. 233; Gould v. Rosenthal v. Renich, 44 111. 202; Bailey, 44 111. 491; Goeppner v. Elting v. Bank, 173 111. 388. Leitzelman, 98 111. 409; Marshall 26a— Bull v. Harris, 31 111. 487; V. Coleman, 187 111. 569. Welch v. Wallace, 8 111. (3 Gilm.) CLAIMS AGAINST ESTATES. 391 claim is reduced to judgment acquires no lien on lands of deceased.27 But a mortgage debt which is a lien upon land of deceased, and for which estate of deceased is liable, may be proved and allowed against such estate the same as any other debt or claim.^s A grantee of land who assumes a mortgage thereon as part of the consideration is personally liable for the mortgage debt, including any deficiency upon foreclosure. A voluntary conveyance of land by a father to his son vrill not relieve the father or his estate after his death, from payment of a mortgage upon the land, which, as grantee in a previous conveyance by the son to the father, the latter had assumed. The son may after father's death, on the executor's refusal to pay the mortgage debt, pay the debt and charge the estate, and such claim may be proved and allowed against the estate, with- out such claimant formally paying the debt.^^ 472. A citizen of another state may proceed to establish a debt against an estate in the Federal Court. In this work Chapter 2, section 47, authorities are cited sustaining this right and where the requisite diversity of citizenship exists the Federal court's jurisdiction is indisputable. We particularly call attention to the case of Byers v. McAuley,^^ where the established rule of procedure in such matter is at large set forth, A very able and elaborate exposition of the law re- lating to the jurisdiction of Federal courts over estates of deceased persons, including suits by creditors of such, and suits by and against representatives of estates, legatees, devisees, heirs and beneficiaries of a trust to enforce their rights, wiU 490; People v. Allen, 8 111. App. Daub v. Englebach, 109 111. 267;' 17; Bay v. Cook, 31 111. 336; Rus- Bay v. Williams, 112 111. 91; sell V. Hubbard, 59 111. 335; Noe Schmidt v. Glade, 126 111. 485; V. Moutray, 170 111. 176. Fish v. Glover, 154 111. 86. 27 — Stillman v. Young, 16 111. 29— Ingram v. Ingram, 172 111. 318; Winslow v. Leland, 128 111. 287, 291, 292. S04; Noe v. Moutray, 170 111. 176. 30—149 U. S. 608. 28— Dean V. Walker, 107 111. 540; 392 THE LAW OF ESTATES. be found in Volume 29, Central Law Journal, pages 145, 166^ et seq., by Russell H. Curtis. 473. Claims afterwards presented — process. "Whoever has a claim against an estate, and fails to present the same for adjustment at the term of court selected by the executor or administrator, may file a copy thereof with the clerk of the court; whereupon, unless the executor or administrator will waive the issuing of process, the clerk shall issue a summons, directed to the sheriff of the county, requiring such executor or administrator to appear and defend such claim at a term of the court therein specified, which summons, when served, shall be sufficient notice to the executor or administrator of the pres- entation of such claim. "31 Under this section of the statute jurisdiction is acquired by the county or probate court, when summons is served on the administrator, or his appearance is entered.32 Xnd. in order to obtain a valid claim, the process must issue, or the administrator or executor must enter his appearance and waive the process.^s 474. Service — continuance. Section 62 of the Administra- tion act provides: "If the summons is not served ten days before the first day of the term to which it is returnable, the cause shall be continued until the next term of the court, unless the parties shall, by consent, proceed to trial at the return term, "^ 4 475. Trial — costs. Section 63 of the Administration act provides: "Upon the trial of such cause, the same proceedings may be had as if the claim had been presented at the time fixed 31— Section 61, Chapter 3, "Ad- 33— Smith v. Goodrich, 167 111. ministration of Estates." Starr & 51; Viskniskii v. Bleakiey, 88 111. Curtis Annotated Statutes of Illi- App. 613. nois, with Jones and Addington's 34 — Laws, 1859, p. 93, sec. 3; Sec- Supplements thereto. Vol. 1, p. 298, tion 62, Sec. 128; Chapter 3, "Ad- and cases cited; Vol. 4, p. 36, and ministration of Estates." Starr & cases cited; Kurd's R. S. of 111. Curtis Annotated Statutes of II- 1905, p. 115. linois, Vol. 1, pp. 298, 347; Kurd's 32— Hale v. Holland, 92 111. 494. R. S. of 111. 1905, pp. 115, 126. CLAIMS AGAINST ESTATES. 393 for the adjustment of claims against the estate, but the estate shall not be answerable for the costs of such proceedings: Pro- vided, that when defense is made the court may, if it shall deem just, order the whole or some part of the costs occasioned by such defense, to be paid out of the estate."*'' The whole question of costs in courts of law is regulated and governed by statute. But since costs were given by statute, the form of the pleadings has remained the same as at common law; courts treat costs as incident to the judgment in the case, and have given them, when authorized by the statute, without reference to the form of pleadings. To recover costs in an action against an executor or administrator, there should be proof of a com- pliance with the requisitions of the statute in that regard. If an administrator is sued, he can plead and rely upon the statute.36 476. Oath of claimant may be required. Section 64 of the Administration act provides: "The court may, in its discretion in any case, before giving judgment against any executor or administrator, require the claimant to make oath that such claim is just and unpaid: Provided, that the amount of such judgment shall not in such case be increased upon the testimony of the claimant.*'' 477. Evidence. Section 65 of the Administration act pro- vides : "A judgment regularly obtained, or a copy thereof duly certified and filed with the court, shall be taken as duly proven ; and all instruments in writing, signed by the testator or intes- tate, if the handwriting is proven and nothing is shown to the 35— Section 63, Chapter 3, "Ad- 101 111. 370; Welch v. Wallace, 8 ministration of Estates." Starr & 111. (3 Gilm.) 490. Curtis Annotated Statutes of Illi- 37— R. S. 1845, p. 561, sec. 119; nois, Vol 1, pp. 298, 299, and cases Section 64, Chapter 3, "Adminis- cited; Kurd's R. S. of 111., 1905, p. tration of Estates." Starr & Cur- 115. tis Annotated Statutes of Illinois, 36— Granjang v. Merkle. 22 111. Vol 1, p. 299; Kurd's R. S. of 111. 250. See also Russell v. Hubbard, 1905, p. 115. 59 111. 335; Darling v. McDonald, 394 THE LAW OF ESTATES. contrary, shall be deemed duly proved. "^^ This section of the statute is declared a rule of evidence in regard to judgments already obtained against estates.^'' That the county court should be advised of the existence, and in some way have before it evidence of the nature and amount of all the judgments against the executor or administrator which bind the estate, otherwise it could never know whether the estate was settled or not, and could not intelligently pass upon the accounts of the executor or administrator. This section has nothing to do with allowing claims or taking judgments against estates.'*^ Authen- ticated copies of a foreign record under this statute, should be presented as required by act of Congress, to be admissible as proof.^i See also effect of judgment against administrator in another state of the same decedent. "^^ Judgment revived by scire-facias should direct payment in due cause of administra- tion. ^^ 478. Demand against claimant — set-off. Section 66 of the Administration act provides: "When a claim is filed, or suit brought, against an executor or administrator, and it appears on trial that such claimant or plaintiff is indebted to such executor or administrator, the court may give judgment there- for, and execution may issue thereon in favor of the executor or administrator.""** In a proceeding or suit at law by an executor or administrator, on demand accruing to such repre- sentative after his decedent's death, the defendant cannot off- set a debt due from decedent when alive.^^ But in a proceed- 38— Section 65, Chapter 3, "Ad- 42— Rosenthal v. Renick, 44 111, ministration of Estates." Starr & 202. Curtis Annotated Statutes of Illi- 43 — Kirkpatrick v. Haley, 14 nois. Vol. 1, p. 299, and cases Colo. Ct of App. 399. cited; Kurd's R. S. of 111. 1905, p. 44— Section 66. Chapter 3, "Ad- 115. ministration of Estates." Starr & 39 — Darling v. McDonald, 101 Curtis Annotated Statutes of lUi- 111. 370, 380. nois. Vol. 1, pp. 299, 300, and cases 40— Darling v. McDonald, 101 cited; Kurd's R. S. of 111. 116. 111. 370-381. 45— Harding v. Shepard, 107 111. 41— Baker v. Brown, 18 111. 91. 264; Newhall v. Turney, 14 m. 338. CLAIMS AGAINST ESTATES. 395 ing in chancery, where a purchaser of land gave his notes for a portion of the purchase money, and simultaneously therewith, as a part of the same transaction, the grantor executed to the purchaser a bond to indemnify and save him harmless, as against certain outstanding notes given bj'' him upon a prior purchase of the same premises from a third party who had bought from the same grantor, but had forfeited his contract and after the death of the grantor, the party thus sought to be indemnified was compelled to pay those outstanding notes. It was held, that in equity, the party so damnified could set off the sum paid by him, against his notes due to the estate of his grantor, it appearing the estate was solvent and the interest of other creditors would not be affected thereby. And such was held notwithstanding the breach of such indemnifying bond did not occur until after the vendor's death.^*^ The same doctrine is applied where the case originated in the county court and went on appeal to the circuit and supreme courts.^ '^ Where administrator sells goods of an estate and warrants the same, the breach of warranty may be shown as defense to notes given the administrator for goods sold and warranted."*^ But sur- viving partner was not allowed to have his individual claim set off against a claim for firm assets in his hands.^^ 479. Claims not due. Section 67 of the Administration act provides : ' ' Any creditor, whose debt or claim against the estate is not due, may, nevertheless, present the same for allowance and settlement, and shall, thereupon, be considered as a creditor under this act, and shall receive a dividend of the said dece- dent's estate after deducting a rebate of interest for what he shall receive on such debt, to be computed from the time of the allowance thereof to the time such debt would have become due, according to the tenor and effect of the contract. ' '^^ Under 46— Stone v. Fargo, 55 111. 71. 49— Berry v. Powell, 18 111. 98; 47 — Mack v. Woodruff, 87 111. and see Maloney v. Scanlon, 53 111. 570. This case applies the doc- 122; Peacock v. Haven, 22 111. 23. trine in Stone v. Fargo, supra. 50 — R. S. 1845, p. 558, sec. 100; 48— Welch V. Hoyt, 24 111. 117. Section 67, chapter 3, "Adminis- 396 THE LAW OF ESTATES. this section of the statute the endorsee of notes not yet due, where the liability of the endorser was absolute and not de- pendent upon any conditions, it was held, the claimant the endorsee may have the amount of the notes allowed as a claim against the estate of the endorser, after allowing the estate the proper rebate of interest; the endorsee being in that case deemed and considered a creditor of the estate within the mean- ing of the statute.^^ And. where the claim filed against an estate is absolute, though not due, and founded upon note or other document or evidence of indebtedness, or whether joint or several in its nature, and there is no contingent conditions the statute applies.^^ 480. Appeals. Section 68 of the Administration act pro- vides: "In all cases of the allowance or rejection of claims by the county court, as provided in this act, either party may take an appeal from the decision rendered to the circuit court of the same county, in the same time and manner appeals are now taken from justices of the peace to the circuit courts, by appellant giving good and sufficient bond, with security, to be approved by the county judge ; and such appeals shall be tried de novo in the circuit court. "^^ Under section 68 of the admin- istration act, providing for appeals from orders of the county court rejecting or allowing claims against estates to the circuit court, the section applies and refers to appeals only, and does not authorize the circuit court to issue a writ of certiorari to the county court in such case.^* tration of Estates." Starr & Cur- 70. See Section 10, Chapter 72, tis Annotated Statutes of Illinois, "Insolvent Debtors" act. Starr & with Jones & Addington's Supple- Curtis Annotated Statutes of Illi- ments thereto, Vol. 1, p. 300, and nois, Vol. 2, p. 2168. cases cited; Vol. 4, p. 36, and cases 53 — Section 68, Chapter 3, "Ad- cited; Vol. 5, p. 18, and cases ministration of Estates." Starr cited; Kurd's R. S. of 111. 1905, p. & Curtis Annotated Statutes of li- ne, linois, with Jones & Addington's 51 — Dunningan v. Stevens, 122 Supplements thereto, Vol. 1, p. 111. 396. 300; Vol. 4, p. 36, and cases cited; 52— Hall V. Moxey, 84 111. 616; Kurd's R. S. of 111. 1905, p. 116. Wolverton v. Taylor, 30 111. App. 54 — Schaeffer v. Burnett, 221 III. 315. CLAIMS AGAINST ESTATES. 397 481. When judge interested or a witness. Section 69 of the Administration act provides : "In all cases or matters, pending in the county court, where the judge of the court shall be inter- ested in the same, or is a material or necessary witness, the case shall be transmitted to the circuit court of the proper county, and there determined as in the county court; and the papers, with the order of judgment of the circuit court thereon, shall be duly certified and filed in the county court, and have the same effect as if determined in the county court. "^•'^ This sec- tion of the statute and also the statute section 204 of the act relating to courts cited are both in force, and that the act of May 31, 1879, which provides for the interchange of county judges, does not repeal this section.^® 482. Demands classified, as to classes of claims — limitations. Section 70 of the Administration act, as amended, is as follows: *'A11 demands against the estate of any testator or intestate shall be divided into classes in manner following, to-wit : First. Funeral expenses and necessary cost of administration. Sec- ond. The widow's award, if there be a widow; or children, if there are children and no widow. Third. Expenses attending last illness, not including physician's bill, and demands due common laborers or household servants of deceased for labor. Fourth. Debts due the common school fund or township. Fifth. The physician's bill in the la.st illness of the deceased. Sixth. Where the deceased has received money in trust for any pur- pose, his executor or administrator shall pay out of his estate the amount thus received and not accounted for. Seventh. All of other debts and demands of whatever kind without regard to quality or dignity which shall be exhibited to the court within one year from granting of letters as aforesaid, and all demands 55 — Section 69, Chapter 3, "Ad- tion 204, chapter 37, pntitled ministration of Estates." Starr & "Courts." Kurd's R. S. of 111. 1905, Curtis Annotated Statutes of Illi- p. 623. nois, Vol. 1, p. 301; Kurd's R. S. 56— Graham v. People, 111 111. of 111. 1905, p. 116. See also sec- 253. 398 THE LAW OF ESTATES. not exhibited within one year as aforesaid shall be forever barred unless the creditors shall find other estate of the de- ceased not inventoried or accounted for by the executor or ad- ministrator, in which case their claims shall be paid pro rata out of such subsequently discovered estate, saving however, to infants, persons of unsound mind, persons without the United States, in the employment of the United States or of this State, the term of one year after their respective disabilities are re- moved to exhibit their claims. "^^ 483. Adjudication and judgment — effect of as between claimant and representative as to personal estate. This section of the Administration act, re-written and passed in 1903,^^ made various changes in the law as it stood in this respect prior thereto. The classification of claims are changed somev/hat, and that part of the section in question fixing the period for exhibiting and presenting claims is shortened from two to oiie year from the time of granting letters of administration. This present statute permits the settlement and distribution of es- tates in one-half the time prescribed by former statutes. The allowance of a claim against an estate by the probate or county court is a judgment binding between the claimant and the executor or administrator as to the personal estate. The classifi- cation of the claim being fixed by the statute, the adjudication and judgment by the court indicate to what class the claim belongs.^^ 57 — As amended by act approved cases cited; Kurd's R S. of IlL June 5, 1889. In force July 1, 1905, p. 116. 1889. Amended again by act ap- 58 — Ante, 482. proved May 15, 1903. In force 59— McCall v. Lee, 120 111. 261; July 1, 1903. Section 70, chapter Bradwell v. Wilson, 158 111. 346; 3, "Administration of Estates." Darling v. McDonald, 101 111. 370; Starr & Curtis Annotated Statutes Sherman v. Whiteside, 190 111. of Illinois, with Jones & Adding- 576; Ford v. First National Bank, ton's Supplements thereto, Vol. 1, 201 111. 120; the latter case hold- p. 301, and cases cited under sec- ing the classification is as much a tion of statute; Vol. 4, pp. 37, 38, part of the judgment as that of and cases cited; Vol. 5, p. 18, and allowing the claim. CLAIMS AGAINST ESTATES. 399 484. Reason why allowance of claim is conclusive against the personal estate. "Where the executor or administrator com- plies strictly with the statute, he legally brings before the court all creditors of the estate. Thus the creditor and the repre- sentatives of the estate being in court are parties to the proceed- ings of the court for the adjustment of claims.®'^ The court having properly acquired jurisdiction, Avill hear and determine the claims of creditors; and in such proceeding pass upon the legal and equitable rights of all parties. The creditor having presented and proved his claim, the adjudication of the probate court is final and conclusive upon him.^^ The allowance of a claim against an estate is conclusive against the personal estate, because the executor or administrator is before the court and a party to its proceedings.^- It being the duty of the executor or administrator to represent and guard the interest of the creditors of the estate, and when a claim is presented for allow- ance the law will hold each and every creditor of the estate, by reason of privity of relation, to be represented by the execu- tor or administrator.^^ <'i^ would be an intolerable burden on those who have claims against an estate in the hands of an executor to require the claimant to make each of the creditors a party. An allowance of a claim against an estate is a judg- ment conclusive upon the creditors and all other parties, so far as the personal estate is concerned. It is not the purpose of the law that a claimant shall litigate his claim first with the execu- tor and then with each and every other claimant of the estate. It was contended by an appellee that the probate court is clothed with a broad jurisdiction over all probate matters, and may look into and correct the allowance of claims after the term at which 60— Mitchell v. Mayo, 16 111. 83; 63—15 Ency. of Pleading and Ward V. Dunham, 134 111. 195; Practice, 641; Dandridge v. Wash- Noe V. Moutray, 170 111. 169. ington's Exr's, 2 Peters, 370; 61— Mitchell v. Mayo, 16 111. 83; Stone v. Wood, 16 111. 177; Ward Noe V. Moutray, 170 111. 169. v. Durham, 134 111. 195; Ford v. 62— Ward v. Durham, 134 111. First National Bank, 201 111. 120. 195. 400 THE LAW OF ESTATES. they are allowed.^* This is true as between the creditor and the heirs-at-law upon a petition filed for the sale of real estate to pay debts; but a distinction is to be made of the effect of the allowance of a claim as to an heir and as to a creditor or legatee.^'^ So far as real estate is concerned, the allowance of a claim against an estate is merely prima facie evidence of the debt due by the estate.*'^^ But as against the personal estate an allowance of a claim is conclusive until reversed by a superior tribunal, unless impeached for fraud, accident or mistake.^'^ 485. Where the deceased has received money in trust. It was undoubtedly the intention of the legislature, when it en- acted and passed the statutes relating to claims against estates, to confer special law and chancery jurisdiction relating to such matters upon the probate and county courts, for the purpose of enabling such courts to do full and complete justice between all claimants and parties in interest relating to the estate of de- ceased persons during the administration thereof. Every con- ceivable claim is susceptible of proof in such court with the possible exception of claims growing out of testamentary trusts and estates in the hands of trustees. Such are still firmly held and controlled by courts of general chancery jurisdiction in this State. It is unnecessary to enumerate the various and different kinds or nature of claims that are susceptible of being fully con- sidered in the first instance by probate and county courts. We however show the jurisdiction of such courts and the law re- lating to such claims as arise, where the deceased has received money in trust for any purpose as noted or defined by class six of the 70 section of the Administration act.^^ The words used in this section of the statute, relating to claims of the sixth 64— Ford v. First National Stone v. Wood. 16 111. 177; Gould Bank, 201 III. 120. v. Bailey, 44 111. 491; Wheeler v. 65— Ward v. Durham, 134 111. Dawson, 63 111. 54; Ward v. Dur- 195. ham, 134 111. 195; Schlink v. Max- 66— Noe V. Moutray, 170 111. ton, 153 111. 447; Sherman v. 169. Whiteside, 190 111. 576. 67— Cook V. Wood, 24 111. 295; 6S— Statute cited ante 482. CLAIMS AGAINST ESTATES. 401 class, "where the deceased has received money in trust for any purpose, his executor or administrator shall pay out of his estate the amount thus received and not accounted for," has been sub- stantially the law of this State since 1872. Previous to that date, the law was: When an executor, administrator or guard- ian has received money as such, his executor or administrator shall pay out of his estate the amount so received and not accounted for, which shall comprise the third class. The sub- sequent enactments struck out the words "where the executor, administrator or guardian has received money as such" and inserted the words shown in the present act.^^ The legislature, by the phrase "in trust for any purpose," intended to extend the class of preferred claims, but how far, admits of question. "The court holds in that case, that the statute does not neces- sarily extend to and embrace every kind of trust; that it does not embrace trusts implied by law. The record of the case considered shows three distinct claims presented and urged as coming within the sixth class. One claim is based upon the purchase of cattle under an agreement to pasture and feed the same, and pay the balance when sold after deducting expense and commissions of sale. Under one claim considered, the facts show a portion of the cattle were sold and the proceeds received by the deceased, one of the parties to the transaction, but the money therefrom could not be identified ; it being held as to that claim, that such money was not trust money, within the meaning of the statute in question, and therefore the owner of the cat- tle was not entitled to have that claim allowed in the sixth class. But as to another lot, sold just before the death of the party intrusted with the cattle, where the proceeds of the sale could be identified, and which came to the hands of the executor of the deceased, the owner was held to be entitled to have his claim allowed as of the sixth class for his share of the proceeds. Another portion of the cattle remaining undisposed of at the death of the party who under contract, was to feed and pasture 69— Wilson V. Kirby, 88 111. 566-569. 36 402 THE LAW OF ESTATES. them and at the time of the death of the party so contracting, were on the pasture of a third person, who held a lien on the cattle for his rent, and who sold the same under stipulation of all parties interested, that the proceeds of the sale should be deposited, to await the settlement of the rights of the parties, it was held: Should there remain any surplus of these pro- ceeds, after satisfying claim for rent, there should be a like allowance in the sixth class to the extent of such surplus. "^<* The word "trust" as used in the 70 section of the Administra- tion act, is used in a restricted sense, and refers only to special or technical trusts.'^^ The county court may allow under this section a claim to a fund held in express trust. '^^ it is also held, a claim should be allowed as of the sixth class, for money received by decedent as executor.'^^ Claims of heirs against administrator's estate are of this class.'^* Money or property of wards in hands of guardian at time of decease are in this class. '^^ The State has right of classification, so have sureties on bond of State Treasurer, who have made good his defalca- tions. Such being held a technical trust that may be recov- ered by the sureties against the estate of such principal as a claim of the sixth class."^ The proceedings in the presenta- tion and allowance of claims is not according to the common law practice, and there is no mode of preserving the evidence or exceptions or of making them a part of the record as in a suit at law.'^^ Such a proceeding in the probate or county court 70— Wilson V. Kirby, 88 111. 569. 71— Delterman v. Ruppel, 200 In this case the clause of the stat- 111. 199. ute relating to the classification 72 — ^Deiterman v. Ruppel, 200 of claims against estates of de- 111. 199. ceased persons, and which gives a 73 — Wilson v. Kirby, 88 111. 566; preference in cases where the de- Fitzsimmons v. Cassell, 98 111. ceased has "received money in 332. trust for any purpose," held: does 74 — Tracy v. Hadden, 78 111. not necessarily extend to and em- 30. brace every kind of trust, as it 75 — Cruse v. Cruse, 21 111. 46. does not embrace trusts implied 76 — Whitbeck v. Estate of Ram- by law. (See ante 482, and stat- sey, 74 III. App. 543; Estate of utory citations.) Ramsey v. People, 197 111. 572. 77— Blair v. Sennott, 134 111. 78. CLAIMS AGAINST ESTATES. • 403 or on appeal from such court in such proceedinprs is not gov- erned by technical rules which apply to a formal suit at law.'^^ In allowance of claims against estates the probate court dis- regards mere matters of form and looks to the substanceJ^ In a matter where equitable relief is required the court will adopt forms of equitable procedure, and in other cases will secure to parties the rights allowed to them by law, for the purpose of arriving at an adjustment of the claim. A claim against an estate of a surety on an executor's bond was allowed in the name of the usee, instead of in the name of the People for his use.*^ 486. Priority of payment. Section 71 of the Administra- tion act provides : ' ' All claims against estates, when allowed by the county court, shall be classed and paid by the executor or administrator, in the manner provided in this act, commencing with the first class; and when the estate is sufficient to pay the whole of the demands, the demands in any one class shall be paid, pro rata, whether the same are due by judgment, writing obligatory, or otherwise, except as otherwise provided.^^ Under the law there can be no preference of claims allowed in the same class, they are under the well settled rules to be paid as of the class allowed.^^ jf assets are insufficient to pay debts in full, they should be distributed pro rata among claims of the same class.*^ Where a claimant receives dividends from an- cillary estate, even though showing great diligence in procur- ing administration in a sister state, such dividends so received 78— Scheel v. Eidman, 68 111. linois, with Jones & Addington's 193; Thomson v. Black, 200 111. Supplements thereto, Vol. 1, p. 308, 465. and cases cited; Vol. 4, p. 38, and 79— Wolf V. Beaird, 123 111. 585. cases cited; Vol. 5, pp. 18, 19, and 80— Thomson v. Black, 200 111. cases cited; Kurd's R. S. of 111., 465. As to trusts and trustees 1905, p. 116. and limitations of actions as 82— People v. Phelps, 78 111. 149 ; applied to such, see chapters xii- Dodge v. Mack, 22 111. 93. xiii of this work. 83— Armstrong v. Ck)oper, 11 111. 81— R. S. 1845, p. 561, sec. 120, 560; Dunlap v. McGee, 98 111. 287; rewritten; section 71, chapter 3, Mack v. Woodruff, 87 111. 570; "Administration of Estates." Starr Colton v. Field, 28 111. App. 354; & Curtis Annotated Statutes of II- Pinneo v. Goodspeed, 22 111. App. 50. 404 THE liAW OF ESTATES. should be deducted from amount to be paid by domiciliary ad- ministrator ; this being the rule where the estate is insolvent.^* The probate or county court may require a creditor to account for moneys received from an ancillary administrator, where he comes to such court having the principal administration and seeks to receive money from such estate. And where the estate is insolvent, all property not set aside for the widow or minor children are assets for the payment pro rata of all creditors according to classification; the place for distributing the assets for payment of debts, held, to be the domicile of the deceased.*^ 487. Demands or claims of executor or administrator. Sec- tion 72 of the Administration act provides: "When an execu- tor or administrator has a demand against his testator or intes- tate's estate, he shall file his demand as other persons; and the court shall appoint some discreet person to appear and defend for the estate, and, upon the hearing, the court or jury shall allow such demand, or such part thereof as is legally established, or reject the same, as shall appear just. Should any executor or administrator appeal in such case, the court shall appoint some person to defend as aforesaid.^^ Under this statute it is held: A guardian of minor children, who is also adminis- trator of the parent's estate, cannot retain ward's funds to meet his own claim against the estate for which he is adminis- trator; particularly where such claim of guardian was barred by the statute of limitation.^^ Where a bill was filed in chancery to set aside an administrator's sale of land for the payment of debts, under decree of county court of Mason county, Illinois. The record in the case shows the land was sold for the debt allowed to the administrator solely. It further appears there was only the form of sale to a third party, who 84 — ^Ramsey v. Ramsey, 97 111. tated Statutes of Illinois, with App. 275; Same v. Same, 196 111. Jones & Addington's Supplements 188. thereto. Vol. 1, p. 309, and cases 85 — Ramsey v. Ramsey, 196 111. cited; Vol. 4, p. 38, and cases 188. cited; Kurd's R. S. of 111., 1905, p. 86— R. S. 1845, p. 561, sec. 121; 116. sec. 72, chapter 3, "Administration 87 — In re Estate of Steel, 65 111. of EJstates." Starr & Curtis Anno- 322. CLAIMS AGAINST ESTATES. -105 paid no money at such sale, but the pretended purchaser held the title for the administrator. The claim of the administrator who failed to proceed as the statute directs was not allowed, the court holding, the land was still liable to be sold for the payment of just debts in the manner pointed out by the stat- ute. But had the purchaser paid money to the administrator at such sale, the rule would have been otherwise.*^ Where claimants' attorney by pre-arranged plans with claimants pro- cured their attorney's appointment as administrator, who forged notes forming the bases of claims allowed, without notice to heirs, and without defense as contemplated by the statute being made, the court holding the proceeding to be a fraud upon the heirs directed under the facts above stated that the unpaid purchase money be paid to the heirs, whose property had been wrongfully sold.^^ The liability of an administrator to an estate, denied by him, is analogous to a claim by administrator against estate, amd requires the appointment of some discreet person to appear and defend for the estate; but it is said the better practice is to appoint an administrator pro tem.^^ Exe- cutor's claim for taxes he paid during the lifetime of his testa- tor should be presented as provided in this section of the stat- ute.^i Appointment to defend under the statute should be made, where the principal administrator is disqualified to axjt.^^ But such need not be appointed, where the demand of the administrator is partial payment upon a debt fully aeknowl- edged,^3 The party appointed to defend must act in good faith and with reasonable prudence.^^ And where executor's interest does not appear of record, this section of the statute does not apply .^^ 88— Coat V. Coat, 63 111. 73. 92— Stone v. Haskins, 97 111. 89 — Whitlock v. McCluskey, 91 App. 5; Vandervier v, Fetta, 20 111. 582. Colo. 368. 90 — May V. Leighty, 3G 111. App. 93 — Emerick v. Hileman, 177 111. 17; Whitlock v. McClusky, 91 371. 111. 582. 94— Switzer v. Kee, 69 111. App. 91 — Corrington v. Corrington, 15 500. 111. App. 360; Mackay v. Pulford, 95 — Elting v. First National 36 111. App. 593. Bank, 173 111. 390. In this case 406 THE LAW OF ESTATES. 488. Entries — classing — payment before allowance. Section 73 of the Administration act provides: "The county court shall make an entry of all demands against estates, classifying the same as above provided, and file and preserve the papers belong- ing to the same. If an executor or administrator pays a claim before the same is allowed as aforesaid, said court shall require such executor or administrator to establish the validity of such claim by the like evidence as is required in other cases, before the same is classed, and be (he) credited therewith. "^^ The, paying of a claim before it is allowed, puts the executor or administrator in peril, by paying in this manner he assumes the risk of proving the claim under this section of the statute.^ '^ Executors or administrators must pay the percentage on the claims determined by the court upon the amount of the assets in their hands belonging to the estate, and such percentage must be paid although some creditors have been paid in full.^* But it appears claims paid by the executor or administrator within the time allowed by statute, in certain cases have stood as a credit to such when reported to the court before final settle- ment of his accounts and distribution.^^ The classification of the claims must be made, it is a part of the claim allowed.^ 489. Expense incurred by executor or administrator in erecting head stone at the grave of deceased considered proper. the court of chancery took juris- tis Annotated Statutes of Illinois, diction on the ground of gross with Jones & Addington's Supple- mismanagement of the estate and ments thereto, Vol. 1, pp. 309, 310, breach of trust by the executrix, and cases cited; Vol. 5, p. 19, and There it is held creditors may case cited; Kurd's R. S. of 111., maintain such a bill and set aside 1905, p. 117. a sale made to executrix on the 97 — Lynch v. Hickey, 13 111. ground of a collusive judgment App. 139; Wallace v. Monroe, 22 rendered by the county court, and 111. App. 602. that foreign courts have no juris- 98 — Foskett v. Wolf, 19 111. App. diction over an executor acting in 33. Illinois alone. 99 — Harris v. Millard, 17 111. 96— R. S. 1845, p. 562. sec. 122; App. 512. section 73, chapter 3, "Adminis- 1 — Ford v. First National Bank, tration of Estates." Starr & Cur- 201 111. 128. CLAIMS AGAINST ESTATES. 407 The erection of a suitable head stone at the grave of a deceased person may properly be considered a part of the executor's per- sonal expense, when the rights of creditors are not defeated or jeopardized; the sum expended not being extravagant, but rea- sonable in view of the station in life of the deceased, and the value of the estate left by him. And such amount so expended should be allowed as a credit on settlement of the administra- tor.2 ii jg advisable, however, that the representatives of the estate consult the court of probate or the distributees of the estate, or both as to the amount, if any, to be thus spent. In Colorado such a claim has been held improper.^ 490. Partnership claim. A partnership debt is joint and several, and the creditor has the right to elect whether he will proceed against the assets in the hands of the surviving partner or against the estate of the deceased partner.^ The creditor may proceed against the estate at any time before the statute of limitation has run; and the failure to pursue the partnership assets cannot be relied upon as a defense, when suit is brought against the estate.^ 2 — Spire v. Lovell, 17 111. App. rule is put in force to the effect 559. The opinion in that case is where there are individual and supported by the following author- partnership creditors having de- ities: Wood V. Vanderberg, 6 mands against an estate, the in- Paige, 277; McGlinsey's Appeal, 14 dividual creditors will have prior- Serg & Rawley, 64; Porter's Es- ity as to the individual assets, and tate, 77 Pa. St. 43; Fairman's partnership creditors a prior claim Appeal, 30 Conn. 205. against firm assets; and the in- 3 — Lusk V. Patterson, 2 Colo. Ct. dividual creditor will have the of App. 306. right to insist that no part of tha 4 — Silverman v. Chase, Ex'r, 90 separate assets shall be taken and 111. 41; Mason v. Tiffany, 45 111. applied in payment of firm debts 392; Doggett, Ex'r, v. Dill, 108 until all separate debts are paid 111. 560; Eads v. Mason, 16 111. in full. Lindley on Partnership, App. 545. 1053; and see authorities cited on 5 — Doggett, Ex'r, v. Dill, 108 111. page 567 of the opinion in Dog- 560. In this case the well-settled gett v. Dill, supra. CHAPTER XXIV AWARDS TO WIDOWS AND CHILDREN Sec. 491. The widow's allowance. 492. Allowance to children. 493. Appraisers make and certify awards. 494. Appraisers to consider condi- tions and mode of living widow was accustomed to at time of husband's death. 495. Property awarded vests abso- lutely in the widow. 496. Right to award not affected by renunciation. 497. Administrator's duties in re- lation to award. 498. When the widow's award is a lien upon the real estate. 499. When widow's award is not a lien upon real estate. Sec. 500. Widow may release her award in various ways. 501. But if there are infant chil- dren widow cannot release. 502. Ante-nuptial agreement, may or may not be bar to wid- ow's award. 503. Weaver v. Weaver. 504. McMahill v. McMahill. 505. Spencer v. Boardman. 506. Christy v. Marmon. 507. Where the widow is not bound by such agreement. 508. Phelps V. Phelps. 509. Zachmann v. Zachmann, Mur- dock V. Murdock. 510. Miscellaneous. Sec. 491. The widow's allowance. Under the Statute of Illinois, the widow has a special right to certain articles of per- sonal property, and she takes in exclusion of debts, claims, charges, legacies and bequests, except funeral expenses, and holds the same as her sole and exclusive property. The widow, residing in this State, of a deceased husband whose estate is administered in this State, whether her husband died testate or intestate, shall, in all cases, in exclusion of debts, claims^ charges, legacies and bequests, except funeral expenses, be allowed, as her sole and exclusive property forever, the fol- lowing, to-wit: First — The family pictures and the wearing apparel, jewels and ornaments of herself and her minor children. 408 AWARDS TO WIDOWS AND CHILDREN. 409 Second — School books and family library of the value of $100. Third — One sewing machine. Fourth — Necessary beds, bedsteads and bedding for herself and family. Fifth — The stoves and pipe used in the family, with the neces- sary cooking utensils; or, in case they have none, $50, in money. Sixth — Household and kitchen furniture to the value of $100. Seventh — One milch cow and calf for every four members of her family. Eighth — Two sheep for each member of her family, and the fleeces taken from the same, and one horse, saddle and bridle. Ninth — Provisions for herself and family for one year. Tenth — Food for the stock above specified, for six months. Eleventh — Fuel for herself and family for three months. Twelfth — $100 worth of other property suited to her condi- tion in life, to be selected by the widow. Which shall be known as the widow's award; or the widow may, if she elect, take and receive, in lieu of the foregoing, the same personal property, or money in place thereof, as is or may be exempt from execution or attachment against the head of a family residing with the same.^ This special right is not given to the surviving husband; for the debts may consume the whole of his personal estate as he has no special right to an award; but the widow if she survive has her award, without regard to the debts and legacies, whether the husband dies leaving a will or not; nothing in the form of a claim being chargeable to the widow except funeral expenses. The intention of the legislature and the policy of the law in this respect being to give the widow under all circumstances support during the administration of her husband's estate.'^ 6— Law of 1847, p. 168, sec. 1; 4, p. 38; Vol. 5, p. 19; and cases section 74, chapter 3, "Adminis- cited under section of statute in tration of Estates." Starr & Cur- each volume; Kurd's R. S. of 111., lis Annotated Statutes of Illinois, 1905, p. 117. with Jones & Addington's supple- 7 — Strawn v. Strawn, 53 111. ments thereto. Vol. 1, p. 310; Vol. 263; Boyer v. Boyer, 21 111. App. 410 THE LAW OF ESTATES. 492. Allowance of award to children. "When the person dying is at the time of his death a housekeeper, the head of a family, and leaves no widow, there shall be allowed to the chil- dren of the deceased, residing with him at the time of his death, (including all males under eighteen years of age, and all females), the same amount of property as is allowed to the widow by this act. "^ In the early case of Lesher v. Worth,^ Mr. Justice Caton, speaking for the court, gave the first clear construction of this section of the statute, and that construction, broad and liberal, has ever since been closely followed. It is said, the question here is, whether the children, where the intes- tate was a widow, who was at the time of her death a house- keeper, and the head of a family, shall take under the provi- sions of this section the same as if the intestate had been a widower. To me it seems exceedingly clear, that the children are entitled to take the property left by the mother the same as if left by a father. It cannot be denied that the mischief de- signed to be remedied exists in the one case as much as in the other. Ingenuity will seek in vain for a reason why the orphans should be left entirely destitute, where the familj'- has been broken up by the death of a mother, any more than if that calamity had happened by the death of the father. They are at least equally entitled to the humane consideration of the legislature. The creditors of the mother have no more just claim to take the last crumb from the mouths of the orphans, and turn them utterly destitute upon the world, than have the creditors of the father. A man dies, leaving a family of chil- dren to whom certain property is set apart for their support. 534; McMahill v. McMahill, 113 tion of Estates," Starr & Curtis 111. 461; In re Scovill's Estate, 20 Annotated Statutes of Illinois, 111. App. 426; Phelps v. Phelps, 72 with Jones & Addington's Supple- Ill. 545; Miller v. Miller, 82 111. ments thereto. Vol. 1, p. 313; Vol. 4r5; Sutherland v. Harrison, 86 4, p. 39; and cases cited under sec- Ill. 374. See section 13, chapter tion of statute in each volume; 52, "Exemptions," Starr & Curtis. Hurd's R. S, of 111.. 1905, p. 118. 8— Laws of 1845, p. 598, sec. 4; 9— Lesher v. Worth, 14 111. 40. section 77, chapter 3, "Administra- AWARDS TO WIDOWS AND CHILDREN. 411 At the next door, a woman dies, leaving also a family of chil- dren, who are turned into the street entirely destitute. Is this the equality of our laws, and the equal justice of our legisla- ture? Why should the children of a deceased father be pro- vided for more than those of the mother? We seek in vain for the object of such a discriminating policy, nor was it ever designed by the legislature. Again in the early case of Strawn V. Strawn,^^ it is held: The word "family," as used in this section of the statute, d«^s not include alone the widow and , the minor children of the deceased, but includes such persons as constituted the family of the deceased at the time of his death, whether servants, or children who had attained their majority. In this, is not to be included boarders, but only the persons constituting the private household of the deceased.^ ^ Decedent's real estate may be sold to pay allowance to chil- dren of statutory award.^^ The settled policy of the State of* Illinois, as to awards, is clearly to protect the widow from her \ husband's creditors to the extent of her award; and further j to protect the children from their deceased parent's creditors | to the extent of the statutory award to them, where such are*' in fact children of either.^^ But in any case where an award is allowed a marriage relation must have existed, this is the theory under which the award is allowed, and of course the policy of the law.^* Dependency upon deceased is not essential to allowance of award to child.^^ 493. Appraisers make and certify awards. The apprais- ers shall make out and certify, to the probate court or county court having probate jurisdiction, an estimate of the value of each of the several items of property allowed to the widow; and it shall be lawful for the widow to elect whether she will 10—53 III. 263. Lessley y. Lessley, 44 111. 527; 11— McMahill v. McMahill, 113 Strawn v. Strawn, 53 111. 263. 111. 461. 14— Hooper v. McCaffery, 83 111. 12— Lynch v. Hickey, 13 111. App. 341. App. 139. 15— Walford v. Deemer, 89 111. 13— Lesher v. Worth, 14 111. 40; App. 526. 412 THE LAW OF ESTATES. take the specific articles set apart to her, or take the amount thereof out of other personal property at the appraised value thereof, or whether she will take the amount thereof in money, or she may take a part in money and a part in property, as she may prefer; and in all cases it shall be the duty of the executor or administrator to notify the widow as soon as such appraisement shall be made, and to set apart to her such arti- cles of property, not exceeding the amount to which she may be entitled, and as she may prefer or select, within thirty days after written application shall be made for that purpose by such widow. And if any such executor or administrator shall neglect or refuse to comply with the above requisition, when application shall be made for that purpose, he shall forfeit and pay for the use of such widow, the sum of twenty dollars for each month's delay to set apart said property so selected, after the said term of thirty days shall have elapsed, to be recovered in the name of the People of the State of Illinois, for the use of such widow, in any court having jurisdiction of the same. When there is not property of the estate, of the kinds men- tioned in the preceding section, the appraisers may award the widow a grc^s sum in lieu thereof, except for family pictures, jewels and ornaments, and in case such v/idow is insane or under other disabilities then the conservator or guardian of such widow may make such selection; and in case such widow die before such award is made or before such selection is made then the administrator or executor of such widow may cause such award to be made and may make such selection for the benefit of the estate of such deceased -widow.* ^ 494. Appraisers may consider conditions and mode of living widow was accustomed to at time of husband's death. In the case of Strawn v. Strawn,^"^ it was urged that no distinction 16 — Section 75, chapter 3, "Ad- Supplements thereto, Vol. 1, pp. ministration of Estates." Starr & 312, 313, and cases cited; Vol. 4, Curtis Annotated Statutes of Illi- pp. 38, 39, and cases cited; Kurd's nois, with Jones & Addington's R. S. of 111., 1905, p. 117. 17—53 111. 263. AWARDS TO WIDOWS AND CHILDREN. 413 should be made in the amount and character of the allowance between the widow of a man of large fortune, left with an ample and well furnished homestead upon her hands, and obliged either to abandon it, or to employ servants for its proper care, and a widow who is left in possession of a small house, which she has been accustomed to care for by the labor of her own hands. Meeting this proposition the court held in that case, that the legislature designed the appraisers, in fixing the amount of the widow's award, should take into view the condi- tion and mode of life in which the widow was left by the death of her husband, and to regard as necessary that furniture which is the ordinary and appropriate furniture of such homesteads. The award, however, fixed by the appraisers and certified to the court, is always subject to the approval of the court; which has power and may for cause, set aside the appraisement made and order a new appraisement; but the court has no power or authority to modify an award made by appraisers, nor can it substitute the court's judgment for that of appraisers.^^ 495. Property awarded vests absolutely in the widow. The articles of personal property awarded and set apart to the widow, vests absolutely in her, and her award takes priority in payment of all debts and charges except funeral expenses.*^ 496. Right to award not affected by renunciation. "The right of a widow to her award shall in no case be affected by her renouncing or failing to renounce the benefit of the provi- sions made for her in the will of her husband, or otherwise. "20 18— In re Scovill's Estate, 20 111. Miller v. Miller, 82 111. 470; Sum- App. 426, and cases cited in opin- ner v. McKee, 89 111. 133; Little v. ion; Miller v. Miller, 82 111.. 463; Williams, 7 111. App. 67; Ross v. Marshall v. Rose, 86 111. 374; Rut- Smith, 47 111. App. 197; McMahill ledge V. Rutledge, 21 111. App. 357; v. McMahill, 113 111. 461; York v. Boyer v. Boyer, 21 111. App. 534; York, 38 111. 522; Furlong v. Riley, Lane v. Thorn, 103 111. App. 217; 103 111. 628. Lipe V. Fox, 21 Colo. 140. 20— R. S. 1845, p. 546, sec. 50; 19 — Strawn v. Strawn, 53 III. section 76, chapter 3, "Adminis- 263; Telford v. Boggs, 63 111. 498; tration of Estates." Starr & Cur- 414 THE LAW OF ESTATES. 497. Administrator's duties in relation to award. The court holds in Illinois, under statute law, that if the administrator fails to assign such articles to the widow, she or her adminis- trators, if she died subsequently to her husband's death, may proceed against the administrator of the husband's estate for their value.^i It is also held, a widow is entitled to interest on the balance due of her award, when she has made election to take it in money.22 498. When the widow 's award is a lien upon the real estate. The widow's allowance, in case it is not paid from the pereonal estate or by relinquishment and selection, is a lien upon the real estate of the deceased, to the extent of the award. But if a portion of the real estate has been devised to the widow, together with the value of the residue of the real estate, it is to be taken into consideration, and a proportionate part only becomes a charge against such residue.^^ And upon a deficiency of personal assets, the real estate of the deceased may be sold to pay the widow's award.^* 499. When widow's award is affected by prior lien on real estate. A judgment creditor filed his bill in chancery to reach the debtor's interest in a co-partnership, or such sum as might tis Annotated Statutes of Illinois, homestead, but not to the exclu- with Jones & Addington's Supple- sion of his children, until she ments thereto, Vol. 1, p. 313, and shall marry again, and the widow cases cited; Kurd's R. S. of 111., fails to renounce the will, she will 1905, p. 117; Cruce v. Cruce, 21 take no dower or estate of home- Ill. 46; Miller v. Miller, 82 111. stead under the statute. What- 467; Sutherland v. Harrison, 86 ever rights the widow may take 111. 367; Administrators of Gullett in her husband's real estate she V. Farley, 164 HI. 566. will derive under the will. The 21 — York V. York, 38 111. 522; general rule being applied, that if Furlong v. Riley, 103 111. 628. a widow takes under a will, she 22 — Stunz V. Stunz, 131 111. 210. will be bound by its provisions. 23 — Dettzer v. Schuester, 37 111. It was therefore held, in that case, 301. In Stunz v. Stunz, supra, it the wife took only the right to was held: Where a will gives a enjoy the homestead in common widow one-third of the net income with the children during her wid- of the testator's real estate for owhood. life, and the right to live on his 24— Lynch v. Hickey, 13 111. 139. AWARDS TO WIDOWS AND CHILDREN. 415 on settlement of the partnership matters, be found coming to him. The debtor died, and his widow was appointed adminis- tratrix of his estate. The award allowed the widow was more than the decedent's interest in the partnership, and she claimed the right to have the interest in the co-partnership applied on her award: Held, that the creditor's lien was not divested by the death of the debtor, and that in such case the widow would take only so much as was left after satisfying the lien ; the claim of the widow's award is against the estate of her de- ceased husband ; and if there is no estate, she will have nothing to rely on for its payment. If the estate is incumbered by a valid lien, the award will not set aside the lien.^s And it has been also held, where a widow elected to take under the will of her husband, and as executrix thereof, completely adminis- tered the estate without claiming her award, and after a period of more than ten years from the grant of letters to her, she attempted to sell the real estate of her deceased husband to pay an award to her, appraised at such late date ; the court in such case applied the doctrine of laches, because there was no reasonable excuse for such delay, holding as the court does, that it was the duty of the appraisers to at once fix the widow's award, and if they fail to do so, the widow having herself become executrix, might have in that capacity, under the statute, compelled the appraisers to discharge such duty.-** And if she desires her award this should be done in a reasonable time.-" The widow administered the estate of her husband, waived her award and took all the property under her deceased husband's will for life. And so in such case, the waiving of the widow's award was harmless, for she took the whole property for life without claiming her award, and in such case the award would constitute no lien upon the property even if not waived.-^ 25 — King, Administrator, v. istrator, v. Goodwin, 130 III. 102. Goodwin, 130- 111. 102. 27— Furlong, Administrator, v. 26— Furlong, Administrator, v. Riley, 103 111. 626. Riley, 103 111. 626; King, Admin- 28— Brack v. Boyd, 202 111. 440. 416 THE LAW OF ESTATES. 500. Widow may release her award in various ways. In general, she has a year to take under the will or under the law by statute; but a widow may release her award by accepting another provision in lieu of it, or by a direct release for any purpose where she is fully informed of all the benefits in so doing, if any, or the truth relating to the fact of the release given by her. Her award being by express provision of the statute her sole and exclusive property, she may act with the same in its release and collection like any other claimant, under such limitations as the law imposes.^^ 501. But if there are infant children, widow cannot release. The special allowance made by the statute for the widow of a deceased person is as much for the advantage of the children of the deceased as for the widow, and where there are such chil- dren residing with the widow, she has no power to release such award, and it cannot in such case be affected by an ante-nuptial contract, or otherwise, as the policy of the law is to provide a home for the family, that the domestic rights may remain un- broken during the period for which provision is made for them, notwithstanding the death of her husband.^^ But it is held arguendo, that a widow takes her award as her absolute prop- erty, not as trustee for children or members of family .^i 502. Ante -nuptial agreement, may or may not be a bar to widow's award. The following cases establish the doctrine, that where an ante-nuptial agreement has in good faith been fully performed by the husband's legal representatives, the 29 — McMahill v. McMahill, 113 award," have once accrued to her 111. 461; In re Scoville's Estate, 20 by the death of her husband, she 111. App. 426; Maynard v. May- may exchange the specific articles nard, 194 111. 48. of property awarded to her by the 30 — Phelps V. Phelps, 72 111. 545. statute, or she may release her 31 — Weaver v. Weaver, 109 111. right to them altogether, or dls- 225. In this case it is held: After pose of her award, the same as a widow's rights in respect to any other property of which she what is termed the "Widow's is the absolute owner. AWARDS TO WIDOWS AND CHILDREN. 417 widow will be concluded by it, whether there be any children or not.32 503. In Weaver v. Weaver,^'-^ there were no children of the deceased husband and his widow, but a son of the husband by a former marriage, and the daughter of the wife by a former marriage lived in the family of the deceased hus- band as members of his family. The ante-nuptial agreement provided for the payment of $12,000 to his wife, and the same had been fully paid by the legal representatives of the deceased husband and accepted by the widow. It being held, the widow was concluded by the ante-nuptial agreement. 504. In McMahill v. McMahill,^'*^ the widow accepted the sum of money specified in the ante-nuptial contract to be paid to her, and it was held, that her right to a widow's award was barred. 505. In Spencer v. Boardman,^^ there were no children born of the marriage to which the ante-nuptial contract related, and no child or children of the husband by his former marriage resided in his family at the time of his death; it being held in that case, where there are no children of the marriage, re- lating to the ante-nuptial agreement, the widow's award may be barred. 506. In Christy v. Marmon,^^ the husband died intestate, leaving no child or children or descendants of any child; and it was held, the ante-nuptial agreement was in the nature of an 32 — Weaver v. Weaver, 109 111. In Christy v. Marmon, supra 225; McMahill v. McMahill, 113 (32), the provision in the ante 111. 461 ; Spencer v. Boardman, IIS nuptial contract in question was 111., 553; Christy v. Marmon, 163 to the effect that the wife shall, 111. 225; Zachmann v. Zachmann, after the husband's death, "have 201 111. 387; Murdock v. Murdock, full control and use" of certain 219 111. 123; Kroell v. Kroell, 219 described property during life and 111. 105. widowhood, and that she "is to re- 33 — 109 111. 225. ceive as dower from the estate" of 34—113 111. 461. the husband "the sum of $500 an- 35 — 118 111. 553. nually," was held bars the dower 36—163 111. 225. of the wife in the husband's es- 26 418 THE LAW OF ESTATES. equitable jointure, and barred the widow's right of dower in the real estate of the deceased, and also the widow's award, though it was no bar to her right of homestead. 507. Where the widow is not bound by such agreement. The courts apply the doctrine, "that so long as the ante-nuptial agreement remains executory she may repudiate it." Also, where the facts of record are found to be, that the widow's family consisted, in part of a child or children of the deceased husband, and that the agreement was unexecuted by the legal representatives of the decea.sed husband, the widow was not bound thereby, nor barred of her right to the award which section 74 of Chapter 3 of the "Administration Act" provides, shall be set apart for widows of deceased husbands whose es- tates are being administered in this State.^'^ 508. In Phelps v. Phelps,^^ it was held: That the allowance of a widow's award was provided out of motives of public concern, and there are grave reasons why a law enacted from public considerations should not be abrogated by mere private agreement, and that it would be in contravention of the policy of the law to permit a man, by an ante-nuptial agree- ment, to relieve his estate from the operation of the statute providing that an allowance should be made for the mainte- nance of the widow and minor children for a limited period; and, upon this reasoning it was held, that an ante-nuptial agreement was inoperative as to the widow's award. In that case one child, born of the marriage, was living with the widow at the time of the application for an award. tate, but does not bar her inherit- of the husband, was chargeable ance as heir under section 1 of upon the whole estate, real and the Statute of Descent, or her personal, and not exclusively upon right of homestead, as there was the portion inherited by heirs no purpose to bar her of these other than the wife, rights expressed in the will. It 37 — See note 6, statute citation, was also held the annuity provid- section 74, chapt. 3, "Administra- ed for under the ante nuptial con- tion of Estates," Ante 491. tract "as dower from the estate" 38 — 72 111. 546. AWARDS TO WIDOWS AND CHILDREN. 419 509. In Zachmann v. Zaclimann,^'^ the court held: The deceased husband left him surviving a minor daughter and the appellant, his widow. The ante-nuptial contract remained ex- ecutoiy, — a bare agreement, — and it was therefore within the power of the appellant to decline to be bound by the provi- sions of the contract as to her right to the widow's award. A petition for appointment of appraisers to set off a widow's award is not a proceeding in the nature of an action ex cmi- tractu. The right to a widow's award under the statute, de- pends upon the marriage, the continuance of the marriage re- lation until death, and the survivorship of the wife. A con- tract executed jointly between the husband and wife, whereby each party releases, quit claims and conveys to the other, both real and personal property, renouncing forever all claims, in law and equity, of curtsy, dower, homestead, survivorship or otherwise, releases the right to the widow's award, and bars the same, if there are no minor children of the decedent liv- ing with the widow. Marriage of the parties to an ante nuptial contract, coupled with the mutual covenants of the parties waiving and releasing the right of each in the property of the other, is sufficient consideration for the contract; and such contracts are not against public policy.^*^ But if the provi- sions for the intended wife in an ante nuptial contract is dis- proportionate to the means of the intended husband, the hus- band and those claiming under him have the burden of proving that the intended wife, at the time she executed the contract, had full knowledge, or reasonable means of knoMdedge, of the nature, character and value of the intended husband's prop- erty; and this knowledge must be brought directly to the in- tended wife in order to bind her under such contract.^^ 39—201 111. 387. 638. In Zachmann v. Zachmann, 40— Kroell v. Kroell, 219 111. supra (40), it was held: If an 105; Zachmann v. Zachmann, 201 ante nuptial contract providing for 111. 387. the payment of a gross sum for 41 — Murdock v. Murdock, 219 the release of the widow's award, 111. 123; Yarde v. Yarde, 187 111. dower and homestead lights is 420 THE LAW OF ESTATES. 510. Miscellaneous points applicable to subject. Children of deceased widow are entitled to statutory award out of her property.42 Delay of nine years unexplained in enforcing right to award is conclusive of such right.^^ And it appears that a family allowance made in a foreign state, if enforcible in this State must be presented to the probate court like any other claim."*** Marriage relation must have existed or award cannot be allowed.**^ declared inoperative as to the pro- vision for waiver of homestead and widow's award, it is inoper- ative in toto and does not affect dower. This is declared to be the law, as statute granting benefit of homestead and award were en- acted out of concern for the pub- lic welfare as well as for the bene- fit of those directly affected by such law, in so far as tney confer privileges and exemptions upon persons, not only for their own benefit but also for the benefit of others dependent upon them, and such law cannot be abrogated by personal agreements. See Recht V. Kelly, 82 111. 147; 12 Am. & Eng. Ency. of Law, 2d ed. 192, and cases cited; Powell v. Daily, 163 111. 646. 42— Lesher v. Wirth, 14 111. 39. 43— Tarrant v. Kelly, 81 111. App. 121. 44— Smith v. Smith, 174 111. 61. 45— Hooper v. McCaffery, 83 111. App. 341. In Smith v. Smith supra (44), it is held: The rule that it is the duty of an ancillary administrator to turn over the balance in his hands, after pay- ing all claims in his jurisdiction, to the principal administrator to satisfy unpaid claims in his juris- diction, applies only to personal property or the proceeds of the sale thereof. And so where a pro- bate court in a foreign state al- lows a claim against the decedent's estate within that jurisdiction for a "widow's allowance," the fact the heirs opposed the claim in that state does not preclude them from contesting the widow's right to collect such judgment out of tbe decedent's estate in Illinois. CHAPTER XXV COLLECTION AND DISPOSITION OF ASSETS Sec. 511. Collection of assets, concealed effects, discovery. 512. Refusal to answer — commit- ment. Sec. 513. The title to personal proper- ty involved. 514. Possession of chattel is prima facie evidence of ownership. Sec. 511. Collection of assets — concealed effects — dis- covery. Section 81 of the Administration Act, provides: *'If any executor or administrator, or other person interested in any estate, shall state upon oath to any county court, that he believes that any person has in his possession, or has con- cealed or embezzled, any goods, chattels, moneys or effects, books of account, papers or any evidence of debt whatever, or titles to lands belonging to any deceased person, or that he believes that any person has any knowledge or information of or concerning any indebtedness or evidence of indebtedness, or property, titles or effects, belonging to any deceased person, which knowledge or information is necessary to the recovery of the same, by suit or otherwise, by the executor or adminis- trator, of which the executor or administrator is ignorant, and that such person refuses to give to the executor or administra- tor such knowledge or information, the court shall require such person to appear before it by citation, and may examine him, on oath, and hear the testimony of such executor or ad- ministrator, and other evidence offered by either party, and make such order in the premises as the ease may require. "^ 1— In lieu of R. S. 1845, p. 556, force March 19, 1873, Laws of sec. 90; Section 81, chapter 3, 1873, p. 1, sec. 1. The amendment "Administration of Estates," as inserting provision to compel dis- amended by act approved and in covery. See Starr & Curtis Annotat- 421 422 THE LAW OF ESTATES. 512. Refusal to answer — commitment. Section 82 of the Administration Act, provides: ''If such person refuses to answer such proper interrogatories as may be propounded to him, or refuses to deliver up such property or effects, or in case the same have been converted, the proceeds or vahie thereof, upon a requisition being made for that purpose by an order of the said court, such court may commit such person to jail until he shall comply with the order of the court therein.^ Jurisdic- tion is expressly conferred upon courts of probate, under the two sections of the statute cited, which are often applied to- gether, upon the application of an executor or administrator, or other person interested in any estate, to inquire and determine whether another person has in his possession property belong- ing to an estate being administered.^ The court of probate however, in such matter is invested with a discretionary power, and it is not compelled, as a matter of arbitrary law, to make any specific order. The discretion is not unlimited, but should be exercised so as to best preserve the estate, and promote its honest, complete and prompt administration. Such court should look beyond the mere legal right, and protect the equitable right of possession. Hence, the court should not require the equitable owner of promissory notes, made payable to a de- ed Statutes of Illinois, with Jones p. 20; Kurd's R. S. of 111., 1905, & Addington's Supplements there- same sections and chapter, pp. 118, to. Vol. 1, pp. 314, 315; Vol. 4, 124. pp. 39, 40, and cases cited under 3 — Johnson v. Von Kettler, 66 section of statute in question in 111. 63; Steinman v. Steinman, each volume; Kurd's R. S. of 111., 105 111. 348; Connor v. Akin, 29 1905, same section and chapter. III. App. 584; Seavey v. Seavey, 30 p. 118. 111. App. 625; Borders v. People, 2— R. S. of 1845, p. 556, sec. 90; 31 111. App. 483; U. R. & T. Co. v. section 82, chapter 3, "Administra- Shacklet, 119 111. 235. In this tion of Estates." Starr & Curtis case it is held as a general prop- Annotated Statutes of Illinois, osition of law, that where a stat- with Jones & Addington's Supple- ute gives a new right, without pro- ments thereto. Vol. 1, p. 316; see viding a special remedy for its en- also section 114, chapter 3, Admin- forcement, it may be enforced by Istration Act. Starr & Curtis, etc., any appropriate common law ac- vol. 1, p. 339; Vol. 4, p. 44; Vol. 5, tion. COLLECTION AND DISPOSITION OF ASSETS. 423 ceased person, to deliver them to the administrator of the estate, when not required for the payment of debts of the estate or for the purpose of distribution.* The affidavit required by the statute is jurisdictional and must be made to give the court the power to act.^ The court has full discretion as to examin- ing parties, and is not confined to the examination of the de- fendant, it may examine others to determine the facts and fix its order in such proceeding.^^ This section of the statute does not apply, where an attorney acting for an administrator, col- lects and refuses to turn over money belonging to an estateJ The court may permit party cited to testify to facts occurring prior to death of deceased, and may believe and act upon the uncontradicted statements of such witness.^ Proceedings au- thorized by section of the statute cited is in the nature of a bill in chancery for discoveiy and equitable relief.^ And the facts appearing in proceedings under this statute are subject to review in Supreme Court after affirmance by appellate court." In the latter case it was held appellant was not en- titled to a jury trial. A party entitled to share in the estate applied to the probate court to compel the ex- ecutors to inventory personalty which one of them claimed to own. It was held in such case. The probate court tries questions relating to the inventories and accounts of executors, 4 — People V. McKee, 105 111. 588; not govern any case which is to Wade V. Pritchard, 69 111. 279; be tried by the court without a Connor v. Akin, 29 111. App. 584; jury and without requiring the Seavey v. Seavey, 30 111. App. consent of the parties. See also 625; Borders v. People, 31 III. App. Hermann v. Pardridge, 79 111. 471. 483; Martin v. Martin, 170 111. 28; 5— Dinsmoor v. Bressler, 164 111. Mahoney v. People, 98 111. 244. 223. In the case of Martin v. Martin 6 — Wade v. Pritchard, 69 111. supra, it is held, section 41 of the 279. Practice Act (Kurd's R. S, of 111., 7 — Dinsmoor v. Bressler, 164 111. 1905, chapt. 110, p. 1536): Con- 222. cerning propositions of law, applies 8 — Estate of Phillip Kraher v. only to cases where the parties are Launtz, 90 111. App. 499. entitled to a jury trial but waive 9 — Adams v. Adams, 181 111. the jury and submit the case to 210. the court by agreement, and does 10 — Martin v. Martin, 170 111. 28; Coffey v. Coffey, 179 111. 290. 424 THE LAW OF ESTATES. administrators and guardians in a summary manner and with- out a jury .11 513. The title to personal property is involved by proceedings under sections 81 and 82 of the Administration Act, cited. In the case of Williams v. Cliamberlmn,^^ a pro- ceeding was commenced in the probate court of Cook county, upon the separate petitions of appellants, two sisters of the deceased person. These petitions were consolidated and tried together, one petitioner claiming a policy of insurance on the life of the deceased for $10,000, the other claiming a life in- surance policy on the life of deceased of $5,000. The sisters claiming the policies as gifts from their deceased brother, whose estate was being administered in that court; the title to each policy being under a purported assignment of the same to the sisters of the deceased as given on page 213 of the opinion of the court. No question was made by the Insurance Company as to its liability to pay; but by agreement of the parties in- terested, and under the order of the probate court, the policies were delivered to the American Trust and Savings Bank for collection; that bank, to hold the proceeds thereof in trust for the party who should finally be found entitled thereto. On the one hand the administrator claimed the policies and pro- ceeds of these policies as a part of the estate being adminis- tered. On the other, the petitioning sisters claimed the policies and proceeds thereof, as gifts inter vivos or causa mortis from the deceased. The court in passing upon the facts of record, concede it was the intention of W that his sisters should have this insurance, but if, from mistake of law, he failed to do those things which the law requires to carry the intention 11 — Maynard v. Richards, 166 certain personal property claimed 111. 466; Martin v. Martin, 170 111.^ by the executor, is an equitable 28; Coffey v. Coffey, 179 111. 290. one invoking the summary juris- In this case it is held: A pro- diction of the court and the com- ceeding begun in the probate court plaining party cannot insist on by one interested in an estate, to a jury trial on appeal to the cir- compel an executor to inventory cuit court. 12—165 111. 210. COLLECTION AND DISPOSITION OF ASSETS. 425 into effect, mere proof of his intention, however positive and convincing, cannot change the title to the property. Page 218 ; There are three requisites necessary to constitute a donatio causa mortis: (1) The gift must be with a view to the donor's death; (2) It must have been made to take effect only in the event of the donor's death by his existing disorder; (3) There must be an actual delivery of the subject of the donation. It is essential to a donation inter vivos that the gift be absolute and irrevocable ; that the giver part with all present and future dominion over the property given; that the gift go into effect at once and not at some future time; that there be a delivery of the thing given to the donee ; that there be such a change of possession as to put it out of the power of the giver to repossess himself of the thing given. Page 221: The evidence does not show, that W created a trust, or created himself the trustee of the petitioners, and so held possession of the policies for them. It is sufficient that he did not do so, and we find no evidence in the record that he made the attempt. Held: from a mere imperfect gift a trust cannot be deduced. It cannot be determined from the evidence, whether W re- tained the policies and assignments in his possession, and re- frained from all acts showing an intent to deliver them and to thus complete the gifts, in order that he might, if he thought advisable, change his mind and act as future exigencies might require, or whether he was mistaken in the law and supposed that he had done all that was required to make the gift com- plete. But in either case the petitioners are without remedy. It is also held in that case, though the intention to make a gift is clear, yet in the absence of actual delivery, his acts to be equivalent thereto, if of a testamentary character, must be iu compliance with the statute of wills.^^ 13 — Comer v. Comer, 120 111. Richardson v. Richardson, 148 111 420. The following cases sustain 563; Taylor v. Harrison, 179 111 Williams v. Chamberlain, supra- 140; Yokem v. Hicks, 93 111. App (12): Telford v. Patton, 144 111. 670; Coffey v. Coffey, 179 111. 283 611; Barnum v. Reed, 136 111. 388; Jennings v. Neville, 180 111. 277; 426 THE LAW OF ESTATES. 514, Possession of chattel is prima facie evidence of ownership. The holder of a certificate of stock on which is a printed assignment and power of attorney to make the transfer, signed by the owner, is presumed to be rightfully in possession thereof, and such is prima facie authorized to fill in the blank assignment and cause a transfer to be made to himself on the books of the corporation.^* Proof that the consideration for un- indorsed notes, held by a niece of the payee under claim of ownership, was money loaned by the payee to the respective makers, that the notes were delivered to the payee during his life-time, and, although payable to himself or order, were not endorsed by him before his death, does not overcome presump- tion of ownership arising from possession. Declarations by the holder of unindorsed notes, during her pos- session thereof, to the effect, that they had been given her by the payee before his death, are admissible in her favor, as tending to show her claim of ownership.!^ The possession of a note endorsed by a deceased party is prima facie evidence of ownership.^^ But a note payable to the order of a deceased party, is presumed to be a part of the estate of such, and will require proof to overcome this pre- sumption.i'^ But it is held, where a son received from his mother during her life-time, certain sums of money which he loaned and invested, taking notes and mortgages in his own name, and who after his mother's death claimed to be the owner thereof by his mere possession, the prima facie presump- tion of ownership was overcome by the proof offered showing the facts recited. And so it is held under proceedings had pur- suant to sections 81 and 82 of the administration act, that pos- session of property, belonging to a deceased person, was not as McCartney v. Ridgeway, 160 111. 15 — Martin v. Martin, 174 111. 156. See also chapter xiv. of this 371. work, "Gifts causa mortis and in- 16 — Wellman v. Highland, 87 111. ter vivos." App. 407. 14— Coffey v. Coffey, 179 111. 17— Shea v. Doyle, 65 111. App. 283, 474. COLLECTION AND DISPOSITION OF ASSETS. 427 owner of the property, but as agent for the owner, m the absence of any proof or claim by such person, under a sale, gift or loan of the property. The rule being title to pei-sonal property is presumed to be in the administrator or executor or other rep- resentative of an estate, unless the party holding the same show title in themselves, by sale gift or otherwise.i^ And where a hearing and judgment is entered in a court of probate, an ap- peal taken and judgment entered in the circuit under appeal, the court of probate has jurisdiction to complete administration and compel payment of such judgment.^ ^ 18 — Adams v. Adams, 181 111. 461; Kraher's Estate v. Luntz, 90 210; Same v. Same, 81 111. App. 111. App. 496; Mahoney v. People, 644; Shea v. Doyle, 65 111. App. 98 111. App. 241. 474; Mulville V. White, 89 111. App. 19— Hughes v. People, 5 Colo. 91; Kinney v. Keplinger, 172 111. 448. CHAPTER XXVI PARTNERSHIP ESTATES Sec. 515. General remarks, partnership, partners, dormant partner. 516. Duty of surviving partner, in- ventory. 517. Return of such inventory. 518. Surviving partner should nev- er be appointed administra- tor. 519. Rights of surviving partner, account. 520. Liability of surviving partner, — confusing individual and partnership liabilities; — vex- atious or unreasonable delay in rendering account. Sec. 521. Waste, citation, security, costs. 522. The right of the surviving partner to purchase of the executor. 523. The relation of the assets to the individual and partner- ship debts. 524. The executor or administra- tor of a deceased partner entitled to share of profits when surviving partner con- tinues business and uses the deceased partner's capital. 525. Compensation of surviving partner for services. Sec. 515. General remarks, partnership, partners, dor- mant partner. ''A partnership is a voluntary unincorporated association of individuals standing to one another in the rela- tion of principals for carrying out a joint operation or under- taking for the purpose of a joint profit.^ As defined by Story on Partnership:^ ''Partnership, often called co-partnership, is usually defined to be a volimtary contract between two or more competent persons to place their money, effects, labor, and skill, or some of them, in lawful commerce or business, with the understanding that there should be a communion of the profits thereof between them." It sometimes happens that two or more persons associated together in a business enterprise, though not intending to form a co-partnership, become, in legal effect 1 — Dixon's Law of Partnership, sec. 1. 2 — Story on Partnership, sec. 2. 428 PARTNERSHIP ESTATES. 429 partners, that courts hold liable for debts contracted during such association,^ A dormant partner is one whose name is not known or does not appear as a partner, but who is a silent partner and partakes of the profits.'* The administrator of a deceased partner in the first instance, has nothing to do with either the partnership assets or the partnership debts. The surviving partner takes the exclusive legal title to the assets for the payment of the partnership debts, and for such he is held a trustee and accountable as such.^ The surviving partner has the right to use the 'firm name by which to transact his business.® Under the well settled rules, it is the duty of the surviving partner to proceed to settle the business of the part- nership without delay, and the duty of the administrator of the deceased partner, to see that the surviving partner does so. And where surviving partner fails to act, or unreasonably delays a settlement, the county or probate court may by proper proceeding coerce such settlement, or a court of chancery upon application may remove the surviving partner from the trust and appoint a receiver of the court that will settle the partner- ship business.'^ It is the duty of the surviving partner to set- 3 — Pettis V. Atkins, 60 111. 454; during the life of the depositor, or Flagg V. Stone, 85 111. 164; Hodg- after his death. And so under the son V. Baldwin, 65 111. 532. facts stated in that case, a check 4 — Podrasnik v. Martin Co., 25 drawn by the surviving partner, 111. App. 300. on the bank in question, either in 5 — Talcott V. Dudley, 5 111. (4 the firm name or in his own name Scam.) 427; People v. White, 11 as surviving partner, when paid 111. 350; Miller v. Jones, 39 111. will protect the bank. See Ford 54; Johnson v. Berlizheimer, 84 v. Thornton, 3 Leigh 659; Knocht 111. 54. V. United States Savings Inst, 2 6 — Commercial National Bank Mo. App. 563; Bank v. Armstrong, V. Proctor, 98 111. 558. In this 4 Dev. L. 519; Matter of Franklin case, it was held the surviving Bank, 19 Am, Decis. 422; Munn v. partner had the right to change a Birch, 25 111. 35; Peters v. Davis, deposit in the name of one part- 7 Mass. 256; Bopp v. Fox, 63 111. ner to the credit of the firm. But 540. If the sum so deposited was the 7 — Nelson v, Hayner, 66 111. 487; private means of the partner so McKean v. Vick, 108 111. 373; Mil- depositing, the other will have no ler v, Kingsbury, 128 111. 47. power to control it or check it out 430 THE LAW OF ESTATES. tie all the obligations of the firm and to collect all the debts due the firm. And this must be done in the name of the sur- viving partner at the expense of the firm.^ The death of a partner terminates the partnership, but a community of in- terest in the winding up of the partnership matters continues to exist between the surviving partners and the representatives of the deceased, and the partnership continues to have a lim- ited existence for that purpose.^ The winding up or settling of the partnership affairs, after the death of one of the part- ners, may be said to consist, as a general rule, in selling the propertj^, receiving moneys due the firm, paying the firm debts and the advances of the partners, returning the capital con- tributed by each partner, and dividing the profits.^'' Partners may contract with each other that there shall be no good will to be considered as property or as an asset of the co-partnership, and such a contract may be expressly made, or it may be im- plied from other contracts and the acts and conduct of the parties in interest.^^ But a judgment recovered by a surviving partner for damages for loss of profits resulting from a breach of contract which occurred during the life of the other partner, is a partnership asset, although the action upon which the judgment was based was not begun until after such partner's death.i2 516. Duty of surviving partner — inventory. Section 87 of Chapter 3 entitled "Administration of Estates," provides: 8 — Clay V. Freeman, 118 U. S. of his intestate's capital, in con- 97; Maynard v. Richards, 166 111. tinning the business, which such 466. capital bears to the entire capital 9 — Maynard v. Richards, 166 111. of the firm, or, at his option, to 466. have such share of the capital re- 10 — Maynard v. Richards, 166 turned, with interest, and this is 111. 466. true although by the partnership 11 — Douthart v. Logan, 190 111. articles the deceased partner was 243. In this case it is held: The receiving a greater share of profits executor of a deceased partner is than his portion would be if based entitled to that portion of the on his capital, profits earned by the wrongful use 12 — Maynard v. Richards, 106 111. 466. PARTNERSHIP ESTATES. 431 In case of the death of one partner, the surviving partner or partners shall proceed to make a full, true and complete inven- tory of the estate of the co-partnership within his knowledge, and shall also make a full, true and complete list of all the liabilities thereof at the time of the death of the deceased part- ner. He or they shall cause the said estate to be appraised in like manner as the individual property of a deceased person.^^ 517. Return of such inventory. Section 88 of the Ad- ministration act provides: "He or they shall return, under oath, such inventory, list of liabilities and appraisement, within sixty days after the death of the co-partner, to the county court of the county of Avhich the deceased was a resident or carried on the partnership business at the time of his death; if the deceased shall have been a non-resident, then such return shall be made to the county court gTanting administration upon the effects of the deceased. Upon neglect or refusal to make such return, he shall, after citation, be liable to attachment."^* 518. Surviving partner should never be appointed ad- ministrator. A surviving partner should never be appointed administrator on the estate of his deceased partner, because, as such survivor, he becomes accountable to the estate, and could not well account to himself as its representative.^ ^ **As this judgment is reversed, we take occasion to say, in a case of this kind, the probate court should, on the trial of it, proceed as though a bill in chancery had been filed, hear the evidence, and investigate the account without the intervention of a jury, 13— Laws of 1869, p. 300, sec. 1: Statutes, etc., Vol. 2, pp. 2646, Section 87, chapter 3, "Adrainis- 2649, and cases cited; Kurd's R. tration of Estates." Starr & Cur- S. of 1905, pp. 1335, 1337. tis Annotated Statutes of Illinois, 14 — In lieu of Law of 1869, p. with Jones & Addington's Supple- 301, sec. 2. Section 88, chapter 3, ments thereto. Vol. 1, p. 317, and "Administration of Estates." cases cited; Vol. 4, p. 40, and cases Starr & Curtis Annotated Statutes cited; Kurd's R. S. of 111., 1905, of Illinois, Vol. 1, p. 318; Kurd's p. 119. See also sections 4, 13, 14, R. S. of 111., 1905, p. 119. chapter 84, "Limited Partner- 15 — Keward v. Slagel, 52 111. ships." Starr & Curtis Annotated 336. 432 THE LAW OF ESTATES. unless it should appear to be necessary to impanel a jury to try some issue of fact that may be made up, as in ordinary chan- cery cases. "1^ A surviving partner cannot set off and have allowed his individual account against deceased partner's estate, from firm assets in his hands.^^ 519. Rights of surviving partner — account. Section 89 of the Administration act, provides: "Such surviving part- ner or partners shall have the right to continue in possession of the effects of the partnership, pay its debts out of the same, and settle its business, but shall proceed thereto without delay, and shall account with the executor or administrator, and pay over such balances as may, from time to time, be payable to him in the right of his testator or intestate. Upon the application of the executor or administrator, the county court may, when- ever it may appear necessary, order such surviving partner to render an account to said county court, and in case of neglect or refusal may, after citation, compel the rendition of such account by attachment.^ ^ Upon the dissolution of a partner- ship by the death of one of the firm, the property is common, to be divided according to the shares of the partners, after the payment of the debts. This property is, first, the stock in trade as originally contributed, with all the additions made to it; second, real estate owned by the company; and third, in cer- tain cases, the "good will" of the concern, Remick v. Emig}^^ And in the following case it is held to be a good defense to a claim filed against an estate of a deceased person, that its items grew out of a partnership between the claimant and the intestate, which is stiU unsettled. The general rule 16 — Heward v. Slagel, 52 111. tis Annotated Statutes of Illinois, 336-340. See also. Miller v. Jones, with Jones & Addington's supple- 39 111. 54; Breckenridge v. Os- ments thereto, Vol. 1, pp. 318, 319, trom, 79 111. 71. and cases cited; Vol. 4, p. 41, and 17 — Berry v. Powell, 18 111. 98. cases cited; Vol. 5, p. 19, and cases 18— Laws of 1869, p. 301, sec. 3. cited; Kurd's R. S. of 111., 1905, Section 89, chapter 3, "Adminis- p. 119. tration of Estates." Starr & Cur- 18a— 42 111. 342. PARTNERSHIP ESTATES. 433 was applied in this case, to the effect: That where the affairs of a partnership firm have not been settled and a balance struck between its members, no action at law can be maintained by one member of the firm against another. The remedy in such ease is in equity, to obtain a settlement of the accounts of the firm.i^ Personal service upon non-resident partner in a suit for accounting" of partnership property is not essential to the jurisdiction of the court.^^ 520. Liability of surviving partner who confuses indi- vidual and partnership liabilities, or is vexatious or un- reasonable in rendering account. If surviving partner, after the death of his partner still buys goods in the firm name of another firm of which he was a partner, and had or allowed the same to be charged to the old firm, the same as before the death of his partner, thereby so confusing that which was a liability of the firm, with his as surviving partner, as to ren- der it impossible to separate the two, the consequences of the confusion must fall upon the surviving partner, unless he can show the parts of goods so purchased chargeable to each. Di- vcrsey v. Johnson.^^^ This rule is laid down: '*If a party, having charge of the property of another so confounds it with his own that the line of distinction cannot be traced, all the in- convenience of the confusion is thrown upon the party who produces it, and it is for him to distinguish his own property or lose it" and this principle holds in matters of account.^^ It is also held, where a surviving partner is unreasonable and vex- atious in rendering account and turning over balance due the deceased partner's estate to his representatives, the surviving partner will be chargeable with interest.^- 19— Bowzer v. Stoughton, 119 20a— 93 111. 569. 111. 47. 21—1 Story's Eq. Jur. 466. 20— Williams v. Williams. 221 22— Bauer Grocer Co. v. McKee 111. 544. See also Hamilton v. Shoe Co., 87 111, App. 436. Wills, 182 111. 144. 99. 434 THE LAW OF ESTATES. 521. Waste — citation — security — costs. Section 90 of the Administration act, provides: "Upon the committal of waste by the surviving partner or partners, the court may, upon proper application, under oath, setting forth specifically the facts and circumstances relied on, protect the estate of the deceased partner, by citing forthwith the surviving partner or partners to give security for the faithful settlement of the af- fairs of the co-partnership and for his accounting for and pay- ing over to the executor or administrator of the deceased what- ever shall be found to be due, after paying partnership debts and costs of settlement, within such time as shall be fixed by the court. The giving of such security may be enforced by at- tachment, or, upon refusal to give such security, the court may appoint a receiver of the partnership property and effects, with like powers and duties of receivers in courts of chancery; the costs of proceedings under this section to be paid by the ex- ecutor or administrator, out of the estate of the deceased, or by the surviving partner, or partly by each, as the court may order.23 While this section of the statute, provides some reme- dies which may be regarded as cumulative, it does not change the nature of the relation between the surviving partners and the representatives of the deceased partner, and does not affect the right of the latter to have the joint property applied to the payment of the joint debts, and a due distribution of the sur- plus.^'* The death of a partner is, ipso facto, from the time of the death, a dissolution of the partnership, however numer- ous the association may be. But a community of interest still 23 — Laws of 1869, p. 301, sec. 4. of chancery will grant an injunc- Section 90, chapter 3, "Administra- tion to restrain him from acting, tion of Estates." Starr & Curtis and appoint a receiver and direct Annotated Statutes of Illinois, Vol. the account to be taken. In equity 1, p. 319, and cases cited; Kurd's the surviving partner is treated as R. S. of 111., 1905, p. 120. a trustee, with fiduciary relation 24 — Nelson v. Hayner, 66 111. existing between him and the 487. In this case it is held: If legal representative of the de- the surviving partner does not ac- ceased partner, of trustee to the count in a reasonable time, a court cestuis que trust. PARTNERSHIP ESTATES. 435 exists between the survivors and the representatives of the de- ceased partner, and the latter have the right to insist on the application of the joint property to the payment of the joint debts, and a due distribution of the surplus. So long as these objects remain to be accomplished, the partnership may be con- sidered as having a limited continuance.-^ 522. The right of the surviving partner to purchase of the executor. The surviving partner may purchase from the executor of the deceased partner, all the interest of the de- ceased partner in the assets of the firm, after partnership debts are paid, and such purchase may include profits realized since his partner's death. But a power of sale in such case must rest in the executor or administrator, for in the absence of such he could not buy the partnership effects himself, for under the law in the absence of an executor or administrator he would occupy the position of vendor and purchaser, and as such pro- hibited from purchasing at his own sale.'-*^ 523. The relation of the assets to the individual and partnership debts. The rule is established in Illinois "that 25 — Nelson v. Hayner, 66 111. 487. for about ten months before the 26 — Kimball v. Lincoln, 99 111. purchase. Neither can such re- 578. And supporting the case cover against the estate of the de- cited, see Chambers v. Howell, 11 ceased partner, on the theory that Beav. 6; Ray, Exr., v. Vilas, 18 the books were not correctly kept Wis. 169; Hamilton v. Wells, 182 by him, when he attempts to as- Ill. 144. In the latter case it is sert a claim which, if valid, would held: A surviving partner who, exist in favor of former partners, upon purchase of the interest of and where it is shown by evidence the deceased partner, assumes the he was familiar with the business debts shown by the books and and had possession of the partner- papers of the firm, cannot enforce ship books before purchasing the against the deceased partner's es- interest of the deceased partner, tate a subsequently discovered lia- See also, Norman v. Hudleston, 64 bility of the firm not shown by the 111. 11; Over v. Herrington, 66 journal and daily balance book, Ind. 365; Thompson v. Love, 111 but which appears from a register Ind. 272; Clark v. Carr, 45 111. and other papers of the partner- App. 469; Baldwin v. Ball, 48 ship, and which were in his hands N. Y. 673. 436 THE LAW OF ESTATES. partnership property must first be applied to the payment of partnership debts, and that the true and actual interest of each partner in the partnership stock is the balance found due to him after the payment of all partnei-ship debts, and the ad- justment of the partnership account between himself and his co-partners; and in equity real estate forms no exception, but stands on the same footing in this respect with personal prop- erty, no matter in whom the legal title may be vested.^^ Where partnership real estate is required to pay debts, it is in equity considered and treated as personalty.^^ The individual cred- itors of a deceased partner have a prior right to individual as- sets.29 The rule laid down by Washburn on Real Estate,^^ is to the effect, "In this country, — and generally in Eng- land, — the doctrine of survivorship is limited by the ex- tent to which equity stamps the character of personalty upon such estates, and that is, so far as, and no further than, they are required to pay partnership debts." And the same author: "And, as would naturally be inferred from the premises above stated, whatever remains of such partnership real estate after the debts of the company shall have been discharged, is held in common, and is at once subject to dower or curtsy, and goes to the heirs or devisees accordingly, "^i A sale by one partner of his interest in the firm to his co-partner, upon the latter 's assuming and agreeing to pay the debts of the firm, is a personal obligation to pay, and the right to sell and dispose of the assets is vested by the sale in the co^partner, free from any lien on the assets for the payment of the firm indebted- ness.32 But it will be otherwise, if on the dissolution of a part- nership, an amount of the stock of goods equal to the firm in- 27— Bropp V. Fox, 63 111. 540; Eads v. Mason, 16 111. App. 548. Trowbridge v. Cross. 117 111. 113; 30— Vol. 1, pp. 422, 423. Strong V. Lord, 107 111. 25; Breen 31 — Washburn on Real Property, T. Richardson, 6 Colo. 605; Charles Vol. 1, p. 423; Lynch v. Lynch, 86 V. Eshleman, 5 Colo. 107. 111. 286. 28— Strong v. Lord, 107 111. 25. 32— Hapgood v. Cornwell, 48 111. 29— Doggett V. Dill, 108 111. 568; 65; Rainey v. Nance. 54 111. 29; Silverman v. Chase, 90 111. 37; Groembel v. Arnett, 100 111. 34. PARTNERSHIP ESTATES. 437 debtedness is left with one who continues the business, to be converted into money, with which he is to pay the partnership indebtedness; for in such case he can not be held a purchaser, so as to subject such goods to the payment of his individual debts as against the equities of the retiring partner. He will be treated as a trustee, and the trust may be enforced in equity by the retiring partner for the benefit of the part- nersliip creditors, as against subsequent purchasers or ex- ecution creditors with notice of the equities of the retiring partner.33 524. The executor or administrator of a deceased pajrt- ner entitled to share of profits when surviving partner con- tinues business and uses the deceased partner's capital. ' * The rule which the authorities seem to have laid down in such eases and which appears to be the equitable one, is, that the representative of the estate of the deceased partner is entitled to that proportion of the profits earned by the wrongful use of the deceased partner's capital in continuing the business by the surviving partners which such capital bore to the entire capital of the co-partnership," — or at his option, to have such share of the capital returned, with interest, and this is true, although by the partnership articles the deceased partner was receiving a greater share of profits than his portion would be if based on his capital. "^^ 525. Compensation of surviving partner for services. It is well settled that one partner cannot charge the firm, or his co-partners, for his services in attending to the partnership business, unless there is a special agreement among the partners entitling him to do so. In the absence of such agreement, the 33 — Parker v. Merritt, 105 111. ship — Ewell's ed. 976; Robinson v. 293; Williamson v. Adams, 16 111. Robinson, 146 Mass. 167; Freeman App. 567. V. Freeman, 142 Mass. 98; Durbin 34 — Douthart v. Logan, 190 111. v. Barney, 14 Ohio, 311; Burnie v. 243. See also Lindley on Partner- Vandever, 16 Ark. 616; Gates v. Finn, L. R. Ch. Div. 839. 438 THE LAW OF ESTATES. law will not imply one "from the greater industry or greater ability of any one partner. "^^ The reason for the rule is, that each partner is under obligations to devote his skill and efforts to the promotion of the common benefit of the firm.^*^ And the same rule applies to the services of a surviving partner as be- tween himself and the representatives of the deceased partner.'^''' Where, however, the surviving partner renders services in ex- cess of the mere winding up of the partnership affairs, he will, under certain circumstances, be entitled to compensation for such excess."*^ Where the surviving partner is allowed com- pensation, it will appear he successfully continued the business of the firm, or successfully completed an enterprise in which the firm has been engaged, so that a substantial benefit is re- ceived from his efforts. The amount of compensation will vary according to the state of the accounts, the nature of the busi- ness, the difficulty and results of the undertaking, and its necessity or desirability.^^ While it is true, that compensation will ordinarily be denied to a surviving partner in the absence of an agreement therefor, yet an agreement will sometimes be implied where the services are extraordinary and unusual, and such as could not reasonably have been contemplated.*** 35— Brownell v. Steere, 128 111. 38—17 Am. & Eng. Ency. of 209; Parsons on Partnership, sec." Law, pp. 1154, 1183; 2 Lindley on 155; Maynard v. Richards, 166 111. Partnership, sec. 346; Bates on 480. Partnership, sec. 773. Maynard v. 36— Lewis v. Moffatt, 11 111. 392; Richards, 166 111. 481. Maynard v. Richards, 166 111. 480. 37-17 Am. & Eng. Ency. of ^9-2 Bates on Partnership, sec. Law, p. 1183; Bates on Partner- ^^=^= ^J ^^- ^ ^°S- ^^^^^ "^ ^^^' ■ship, sees. 771, 772; Colier on P- ^^^''• Partnership, sec. 199; Parsons on 40 — 2 Bates on Partnership, sec. Partnership, sees. 346, 155 and 777, and authorities cited from note C; Maynard v. Richards, 166. many States by the other in notes. 111. 480. CHAPTER XXVII SALE OF PERSONAL PROPERTY Sec. 526. Title vests in executor or ad- ministrator by virtue of of- fice. 527. Sale of personal property — Private and public sale. 528. What title passes. 529. Neglect to take security. 530. Miscellaneous. 531. Distribution in kind, under will. 532. Distribution in kind, prop- erty preserved. 533. Growing crops. 534. Growing crops personal prop- erty between executor and heir. Sec. 535. Clerks may be employed, also crier or auctioneer, fees. 536. Bill of sale to purchaser, re- turn by administrator. 537. Compounding and sale of des- perate and doubtful claims. 538. Administrator has power to settle claim in favor of es- tate. 539. Avails of desperate claims compounded or sold. 540. Sale of claims not due. 541. Power of executor or admin- istrator under this section. 542. Conveyance to executrix for debts to testator. Sec. 526. Title of personal property vests in executor or administrator by virtue of their office. Executors and ad- ministrators so long as they retain their respective offices, are the sole representatives of the personal estate of the deceased.* Property of a decedent coming from a foreign jurisdiction into that of the domicile, immediately vests in the administrator there, if administration has not been taken out in such foreign jurisdiction.^ Where personal property of a decedent came within the state of Illinois in transitu, it was held, an adminis- trator could maintain trover and treat the property as assets of the estate.^ The following rule laid down by Story 's Conflict 1— Gold V. Bailey, 44 111. 491; National Bank v. Gage, 93 111. 172; York v, York, 38 111. 523; Make- People v. Brooks, 123 111. 246. peace v. Moore, 5 Gillm. (111.) 474; 2— Wells v. Miller, 45 111. 382. Wells V. Miller, 45 111. 382; First 3— Wells v. Miller, 45 111. 382. 439 440 THE LAW OP ESTATES. of Laws gives the doctrine as settled in most of the states of the Union. "Indeed, as the author says, according to the com- mon course of commercial business, ships and cargoes, and the proceeds thereof, locally situate in a foreign country at the time of the death of the owner, always proceed on their voyages and return to the home port, without any suspicion that all the parties concerned are not legally entitled so to act; and they are taken possession of and administered by the adminis- trator of the forum domicilii, with the constant persuasion that he may not only rightfully do so, but that he is bound to ad- minister them as a part of the funds appropriately in his hands. A different course of administration would be attended with, almost inextricable difficulties, and would involve this extraor- dinary result, that all the personal property of the deceased must be deemed to have a fixed situs where it was at the moment of his death, and if removed from it must be returned thither for the purpose of a due administration."^ It will be found on an examination of the cases, that the rule is quite general and the courts hold, there is no unbending rule in regard to property having a fixed situs; the jurisdiction during admin- istration of an estate is left to depend largely upon what may be required for the attainment of justice in each case as it arises. It is held, the lien a judgment creditor gets by virtue of the commencement of an equitable suit, survives the death of the debtor, and that his property then passes 1» his personal legal representatives charged with the lien; the debts of the decedent to be paid out of the assets, after the lien, like any other legal lien, has been first satisfied,^ Our statute of de- scent, being substantially as it is now, since the organization of the State government, has never been thought to prevent administrators taking title in trust to the personal property; the language of the statute does not contemplate that personal property shall descend to, or be distributed to, the heirs-at- 4 — Story's Conflict of Laws, 5 — First National Bank v. Gage, sec. 520. 93 111. 172. SALE OF PERSONAL PROPERTY. 441 law, until after all just claims and debts are paid.^ An ad- ministrator has the legal title to the personal estate, as trus- tee, for the payment of debts ; but when the debts are paid the residue belongs to the heirs-at-lawJ 527. Sale of personal property — public sale — private sale. "When it is necessary for the proper administration of the estate, the executor or administrator shall, as soon as conve- nient, after making the inventor}^ and appraisement, sell at public sale all the personal property, goods and chattels of the decedent, when ordered to do so by the county court (not re- served to the widow, or included in specific legacies and be- quests, when the sale of such legacies and bequests is not neces- sary to pay debts), upon giving three weeks' notice of the time and place of such sale, by at least four advertisements, set up in the most public places in the county where the sale is to be made, or by inserting an advertisement in some newspaper pub- lished in the county where the sale is to be made, at least four weeks successively, previous thereto. The sale may be upon a credit of not less than six nor more than twelve months time, by taking note with good security of the purchasers at such sale. The sale may be for all cash, or part cash and part on time: Provided, that any part or all of such personal prop- erty may, where so directed by the court, be sold at private sale. "8 It is absolutely necessary when proceeding under this section of the statute, that it be followed closely; it confers the 6— People V. Brooks, 123 111. 246. ary 9, 1874. Section 91, chapter 3. 7 — Thornton v. Mehrig, 117 111. "Administration of Estates." Starr 55. See also section 1, chapter 39, & Curtis Annotated Statutes of II- "Descent." Starr & Curtis Anno- linois, with Jones & Addington's tated Statutes of Illinois, with Supplements thereto, Vol. 1, p. Jones & Addington's Supplements 319; Vol. 4, p. 41, and cases cited thereto, Vol. 2, pp. 1426, 1427; Vol. under section of statute in each 4, p. 437; and cases cited under volume; Kurd's R. S. of 111., 1905, section of statute in question in p. 120. See also section 44, chap- each volume; Kurd's R. S. of 111. ter 41. "Dower." Starr & Curtis 1905, p. 763. Statutes, etc.. Vol. 2, p. 1479, and 8 — As amended by act of Febru- cases cited under section; Kurd's R. S. 1905, p. 772. 442 THE LAW OF ESTATES. power, and it directs how that power shall be exercised, there being no room for discretion.^ The statute regarding private sales is an extraordinary provision in derogation of the com- mon law, and should be strictly construed. The general rule of construction applied to statutes like the one in question, where it appears, two clauses of the statute are parts of the same section, inseparably connected with and necessarily de- pendent on each other, is, they should be construed one part by the other.^*^ This rule was applied in Bawen v. Shay,^^ when the same section of the statute was construed: Mr. Justice Craig, speaking for the court, said: "The statute re- quires an administrator to sell the personal property belonging to the estate at public sale in all cases, unless otherwise ordered by the court, — in other words, the statute confers power on the probate court, for good cause shown, to order a portion or all of the personal property sold at private sale./ But the statute does not confer power on the probate court to direct in the order that the property may be sold on credit, without security. The power conferred on the probate court is merely to order or decree a private sale in the place of a public sale, — in all other respects the law regulating a public sale of property by an ad- ministrator remains in full force and effect, applicable to all sales, private as well as public. The probate court has no more supervision over a private sale than it has over a public sale, and hence the same responsibility rests on the adminis- trator to get as good security in the one case as it does in the other. The words ''provided, that any part or all of such per- sonal property may, where so directed by the court, be sold at private sale," were added to the section as an amendment, by the legislature, in 1874, and as the amendment contains no expression which would lead to the conclusion that a private sale upon credit was authorized without security, we think it 9— Hall V. Irwin, 2 Gill (111.) 10— Moore v. Hamilton, 2 Gill 184; Moore v. Hamilton, 2 Gill (111.) 429. (111.) 429. 11— Bowen v. Shay, 105 111. 137. SALE OF PERSONAL PROPERTY. 443 plain that the legislature intended that these sales, when or- dered, should be made with security precisely as public sales are made. The same reason that i^equires security in the one case demands it in the other. 528. What title passes. The general principle is fully es- tablished that upon all judicial sales the rule of caveat emptor applies.^- The same rule applies in equity as in law.^^ Also upon sales by executors and administrators.^* But if an ad- ministrator takes upon himself to warrant personal property sold by him, the maker of a note given for such property may show failure of consideration under the warranty.^^ But it appears that no direct remedy lies against the administrator in equity. The purchaser's remedy, if any, is at law, for a fail- ure of consideration, when sued on his notes for the purchase money.i^ 529. Neglect to take security. In the case of Bowen v. Shayy^ the record shows the order of the probate court pre- scribed no conditions whatever in regard to the sale, nor did it impose any restrictions. The order merely authorized a pri- vate sale, leaving the administrator to be governed by the stat- ute in making the sale. A loss to the estate of $7,019.58 was sustained chargeable to the failure of the administrator under the order noted for private sale to take security, the court hold- ing: Had the administrator followed the statute, and in malt- ing the sale required good security, he could have been charge- able with no loss; but as he has neglected a plain requirement of the statute, and the estate has sustained a serious loss through his negligence it is but right that the loss should fall upon the one who has been to blame. Where an administrator was sued 12— McManus v. Keith, 49 111. 14— Bond v. Ramsey, 89 111. 29; 388; Bassett v. Lockwood, 60 111. Tilley v. Bridges, 105 111. 336. 164; Bishop V. O'Connor. 69 111. i5_welch v. Hoyt. 24 111. 118. 431; Tilley v. Bridges, 105 111. 336; Brandon v. Brown, 106 111. 519. 16— Wing v. Dodge, 80 111. 564. 13— Holmes v. Shaver, 78 111. 17—105 111. 132. 578. 444 THE LAW OF ESTATES. upon his ofQcial bond, it was held: On the sale of property belonging to the estate, where the administrator received the notes of the purchasei-s with security, and it resulted that the principals and sui'eties were insolvent, this will show prima facie, that the administrator had neglected his duty, and was guilty of a dcvastavit.^^ 530. Miscellaneous. A bill was filed in the United States Circuit court, seeking the disposition and control of certain stock claimed to be a specific legacy; the will bequeathing the legacy being admitted to probate, and the estate of the deceased at the time the bill was filed, was as a matter of fact, being administered in the county court: In the case cited and upon the showing made, the federal court dismissed the bill for want of equity, holding, the probate court administering the estate, has ample power to protect all interests in due course; and that that court was the proper court in which to seek the liti- gation sought by the bill filed.^^ It appears an executor paid or attempted to pay a specific legacy made by the testator in his will, by the transfer to the legatee of a certificate of deposit belonging to the estate, which was accepted by the legatee and his receipt given therefor; soon after the assignment of the certificate, and on presentation thereof for payment, the maker thereof became insolvent and defaulted. Held: the transac- tion was unauthorized and void, and such receipt was also void. That recovery in such case could be had against the administra- tor personally on his bond.20 Where the administrator is found guilty of a devastavit, the right to sue on bond follows at once.^^ The record shows the surviving partner, under the law binding him to make settlement of the firm affairs, to ascertain the in- terest of the deceased partner, purchased from the administra- trix, the interest of the deceased partner and assumed the debts 18— Curry v. People, 54 111. 263. 20— Graff enried v. Kundert, 34 19— Wanneker v. Hichcock, 38 111. App. 483. Fed. Reptr. 383. 21— Curry v. People, 54 111. 263; Haslet V. Haslet, 8 111. App. 22. SALE OF PERSONAL PROPERTY. 445 shown by the books and papers of the firm. After this settle- ment and purchase the surviving partner, brought forth and filed a claim against the deceased partner's estate, which he claimed to have discovered subsequent to the settlement and purchase by him of the deceased partner's interest in the firm, and which appeared on the books of the firm. Held : The sale by the administratrix of the interest of the deceased partner in the firm, transferred such interest as the estate had in the firm, which could only be ascertained by the settlement of the partner- ship accounts, and when such sale was made and the valuation determined as to the interest of the estate, the presumption is, that there was an adjustment of the accounts of the deceased member at the time, and that all accounts were taken into con- sideration.22 531. Distribution in kind under will. "If any testator directs that his estate shall not be sold, the same shall be pre- served in kind, and distributed accordingly, unless such sale becomes absolutely necessary for the payment of debts and charges against the estate of such testator."'^ 532. Distribution in kind by order of court. '*If the sale of the personal property is not necessary for the payment of debts or legacies, or the proper distribution of the effects of the estate, the court may order that the property be preserved and distributed in kind. "^^ In Waterman v. Alden,^^ this section of 22 — Hamilton v. Wells, adm'r. Supplements thereto. Vol. 1, p. 182 111. 144. And see the follow- 320; Vol. 4, p. 41, and cases cited Ing cases in supporting the doc- under section of statute in each trine of that case: Norman v. volume; Kurd's R. S. of 111., 1905, ;Hudleston, 64 111. 11; Over v. same section and chapter, p. 120; Harrington, 66 Ind. 365; Thomp- see also Starett v. Keating, 61 111. son V. Love, 111 Ind. 272; Clark App. 196. V. Carr, 45 111. App. 469; Bald- 24— Section 93, chapter 3, "Ad- win V. Ball, 48 N. Y. 673. ministration of Estates." Starr & 23 — Section 92, chapter 3, "Ad- Curtis Annotated Statutes of lUi- ministration of Estates." Starr & nois. Vol. 1, p. 320, and cases cited Curtis Annotated Statutes of Illi- under section of statute; Kurd's nois, with Jones & Addington's R. S. of III., 1905, p. 120. 25—115 111. 86. 446 THE LAW OF ESTATES. the statute was construed, it being held, that which the court may order to be "preserved and distributed in kind" is "per- sonal property" the "sale of which is not necessary" for the settlement of the estate, or the payment of debts or legacies. The statute has made no provision for selling notes or accounts, ex- cept such as may be "doubtful" or "desperate." No provision is made for selling credits that are readily collectible, and no such practice has ever obtained, for the simple reason no neces- sity for so doing ever existed. Of course, notes and other evi- dence of indebtedness may be classed as "personal property," but they are evidently not that kind of "personal property" the statute contemplates may be sold for the payment of debts or legacies, or the proper distribution of the effects of the estate and which the court may order to be preserved and distributed in kind. If the estate consisted of stocks which are not collect- ible, and which can only be realized upon by a sale, or of govern- ment securities that would not come due in many years, or notes or bonds amply secured on real estate, and which are of equal value, the sale of which is not necessary for the administration of the estate, the court, no doubt, in the exercise of a sound dis- cretion, with which it is clothed by the statute in such matters, might order such stocks or securities to be preserved and dis- tributed in kind. And it seems to be settled in the case cited, that parties in interest may agree upon a division of the as- sets, such as choses in action, some of which are "good," some "doubtful," and others "desperate," when such are not re- quired to pay debts. But they cannot ask the court to make such division, for the court cannot compel a division of such, for the reason, it cannot determine what is good and what is not, so as to enable the court to make equal and just division. Any attempt to do so, it is held, would involve the estate in inex- tricable difficulties. 533. Growing crops. Section 94 of the "Administration Act" provides: "If any executor or administrator is of opin- ion that it would be of advantage to the estate of the decedent SALE OF PERSONAL PROPERTY. 447 to dispose of the crop growing, and not devised at the time of his decease, the same shall be inventoried, appraised and sold, in like manner as other personal property; but the executor or administrator may, if he believes it would be of more advan- tage to the estate, cultivate such crop to maturity, and the pro- ceeds of such crop, after deducting all necessary expenses for cultivating, gathering and making sale of the same, shall be assets in his hands, and subject to the payment of debts and legacies, and to distribution as aforesaid.^^ 534. Growing crops personal property between executor and heir, etc. As between landlord and tenant, between debtor and creditor, and under our statute, as between the executor and heir, growing crops are personal property. But between a trespasser and the owner of the soil, and a vendor and vendee, they are real estate. And it has been uniformly held, that, by a conveyance of land, without a reservation in. a deed, the crops and all thing's depending upon the soil for sustenance, belong to and pass with the land.^' After the crops have been matured, however, it is otherwise, but until they are matured, they constitute such an interest in real estate, as to bring them within the statute of frauds. And to pass by a sale by the owner of the soil, it must be evidenced by a writ- ten agreement; or if reserved from the operation of a convey- ance, it must also be in writing.^^ Under section 94, the ad- ministrator is expressly authorized to do what he did in this case, viz.: as administrator of his father's estate he sold the growing crops as other personal property, and applied the pro- ceeds toward the payment of the decedent's indebtedness.^^ 26— Section 94, chapter 3, "Ad- 27— Powell v. Rich, 41 111. 466. ministration of Estates." Starr & 28-Smith v. Price, 39 111. 28; Curtis Annotated Statutes of Illi- j^.^^^ ^ Nichols, 39 111. 372. nois, Vol. 1, p. 321, and cases cited under this section; Kurd's 29 — Cheeney v. Roodhouse, 32 R. S. of 111., 1905, same section 111. App. 49. and chapter, p. 120. 448 THE LAW OF ESTATES. 535. Clerk may be employed — also crier or auctioneer — fees of same. "In all public sales of such property the ex- ecutor or administrator may employ necessary clerks, who shall receive such compensation as the court may deem reasonable for their services, not exceeding five dollars per day, and also a crier or auctioneer who shall receive such compensation as the court may deem reasonable, not exceeding ten doUai's per day, to be paid by such executor or administrator and charged to the estate. "30 536. Bill of sale to purchaser — ^return of sale by administrator. "All executors and administrators shall, im- mediately after making such sales, make, or cause to be made, a bill of the sales of said estate, under oath, describing par- ticularly each article of property sold, to whom sold, and at what price; which sale bill, when thus made and certified by the clerk of such sale and the crier thereof, if any such was employed, as true and correct, shall be returned into the office of the clerk of the county court in the like time as is required in cases of inventories and appraisements."^^ 537. Compounding and sale of desperate and doubtful claims. "Upon suggestion made by an executor or administra- tor to the county court, that any claim, debt or demand what- ever belonging to the estate in his hands to be administered, and accruing in the life-time of the decedent, is desperate on account of the insolvency or doubtful solvency of the person or persons owing the same, or on account of the debtor having availed himself of the bankrupt law of the United States, or on account of some legal or equitable defense which such per- 30— As amended by act ap- 31— R. S. 1845, p. 557, sec. 99; proved June 18, 1891. In force section 96, chapter 3, "Adminis- July 1, 1891. Section 95, chapter tration of Estates." Starr & Cur- 3, "Administration of Estates." tis Annotated Statutes of Illinois, Starr & Curtis Annotated Statutes Vol 1. p. 321; Kurd's R. S. of 111., of Illinois, Vol. 1, p. 321; Kurd's 1905, p. 120. R. S. of 111., 1905, p. 120. SALE OF PERSONAL PROPERTY, 449 son or persons may allege against the same, or for the cause that the smallness of such claim, debt or demand, and the diffi- culty of finding the debtors, owing to the remoteness of their residence, or such executor's or administrator's ignorance of the same, the said court may order such claim, debt or demand to be compounded or sold, or to be filed in the said court, for the benefit of such of the heirs, devisees or creditors of such decedent as will sue for and recover the same, giving the cred- itors the preference, if they or any of them apply for the same before the final settlement of such estate; Provided, that no order for the sale or compounding of any such debts, claims or demands, or any of them, shall be made until two weeks' public notice shall have been given, to all whom it may concern, of the time and place when the said order will be applied for — which notice shall be given by the administrator or executor, in a newspaper published in the county where such application is to be made, or if no such newspaper is published in such county, then by posting up such notices in not less than three public places in the county, of which one shall be at the office of the clerk of the county court — which notice shall be so posted at least two weeks previous to the time of said application. The executor or administrator shall report to the said county court, for its approval, the terms upon which he has settled or dis- posed of any such claim, debt or demand.^^ 538. Administrator has power to settle claim in favcr of estate. An administrator has full power and competent authority to settle a claim in favor of the estate he represents, and if done in good faith, his action cannot be called in ques- tion by a subsequent administrator.^^ And it is also held that under section 83 of the statute {ante 537), an administrator has the power to compromise a suit against a railroad company 32 — ^R. S. 1845, p. 595, sec. 1. Vol. 1, p. 316, and cases cited un- Section 83, chapter 3, "Adminis- der this section; Kurd's R. S. of tration of Estates." Starr & Cur- 111., 1905, p. 118. tis Annotated Statutes of Illinois, 33 — Short v. Johnson, 25 111. 405. 29 450 THE LAW OF ESTATES. for the wrongful death of intestate, without the order of the probate court.^* A suit upon a promissory note, in which the limitation acts of 1849 and 1872 were construed, it is held, under the general rule of construction, that "rights or lia- bilities" in futuro only are not to be construed to affect past transactions.^^ It appears from the record that the executor instead of collecting the note in question in a compromise or settlement exchanged it for other property, and it was held: In the absence of any direction by will, an executor's duty is to collect notes given to- the testator, in money. He has no authority to exchange the same for other property. The defendant executor pleaded the note was given for $500 of money loaned by the payee to a Masonic lodge, and that said lodge paid divers sums of money on the note, and after the death of the payee, the plaintiff (the executor of the deceased payee), received from said lodge, in payment of the note, other property of the value of $1,400: Held, the plea was palpably bad, and presented no defense.^^ 539. Avails of desperate claims compounded or sold. ''And if such claim is compounded or sold, such executor or administrator shall be chargeable with the avails of such com- pounding, and if the same is taken by any of the creditors, heirs or devisees, he or they may maintain an action for the recovery thereof, in the name of such executor or administra- tor, for the use hereinafter mentioned; and upon recovering the same, or any part thereof, he or they shall be chargeable therewith, after deducting his claim or distributive share, with reasonable compensation for collecting the same; and upon such suits the executor or administrator shall not be liable for costs."" 34 — Washington v. Land and N. 37 — Laws of 1845, p. 505, sec. 2. R. Co., 34 111. App. 658. Section 84, chapter 3, "Adminis- 35 — Means v. Harrison, 114 111. tration of Estates." Starr & Cur- 248. tis Annotated Statutes of Illinois, 36— Means v. Harrison, 114 111. Vol. 1, p. 316; Kurd's R. S. of 111., 248. 1905, p. 119. SALE OF PERSONAL PROPERTY. 451 540. Sale of claims not due. "The county court may order claims, debts and demands, due at so remote a period as to prevent their collection within the time required for the final settlement of estates, and the collection or disposition of which is necessary to the payment of the debts against the estate, to be compounded or sold in the same manner and upon like conditions as though such claims, debts or demands were desperate or doubtful ; Provided, that no such claim, debt or demand shall be sold or compounded for less than ten per cent below the value thereof. "^^ 541. Power of executor or administrator under this section. An administrator may legally sell and transfer, at a discount, negotiable paper, taken for the estate, before it falls due; and allowance to the assignee of such paper and payment thereof, within a year of taking out letters, is good, provided all the transaction was in good faith.^^ Executors and administrator may assign notes made to the testator or intestate, as well as those made to themselves.^*^ So where the deceased had agreed to transfer a note, his executors or admin- istrators may be compelled to endorse it, though without per- sonal liability on their part.*^ 542. Conveyance to executrix for debts to testator. It is held from the facts in the case, that a conveyance to a per- son who is an executrix, passes to her the fee, and she may sell and dispose of the land, although received in satisfaction of a debt due her testator. And, having exchanged the land thus received with one of the heirs of testator for land of equal value, which he had inherited from his father, and she having conveyed these lands received from the heir to the other heirs, 38— Laws of 1851, p. 556, sec. 39— Walker v. Craig, 18 III. 116. 94. Section 85, chapter 3, "Ad- 40 — Story on Promissory Notes, ministration of Estates." Starr & p. 139, sec. 123; Makepeace v. Curtis Annotated Statutes of lUi- Moore, 5 Gill (111.) 476; Walter nois. Vol. 1, p. 317; Kurd's R. S. v. Kirk, 14 111. 56; Dwight v. New- of 111., 1905, p. 119. ell, 15 111. 335. 41— Walker v. Craig, IS 111. 116. 452 THE LAW OF ESTATES. she must be held to have accounted for the proceeds of the original debt, and the lands conveyed by her in exchange for the others cannot be regarded as being held in trust for the benefit of the heirs."* 2 42— Greer v. Walker, 42 111. 401. la this case there are no author- ities cited, the case being decided on the facts of record establishing the law of the case announced. It appears the executrix had reported a large amount of assets with which she was charged, and had accounted for a greater sum, and it was held, in such case, a pre- sumption will be indulged, in the absence of proof, that the debts for which the property conveyed to her was received of the debtor was reported and accounted for in her settlement with the probate court. CHAPTER XXVITI EXECUTOR'S SALE OF REAL ESTATE UNDER WILL Sec. 543. Powers of executors in the sale of land. Such charge- able with all real and per- sonal estate coming to their hands. 544. Sale of real estate under will surviving executor. 545. Executor must qualify in or- der to exercise power of sale. 546. Administrator with the will Sec. annexed must apply to chancery to sell land in will. 547. Death of sole executor, power conferred on administrator appointed. 548. Revocation of letters — death or disqualification of execu- tor or administrator, etc. 549. Bond of former executor, etc., liability. 550. Resignation of executor or ad- ministrator — settlement. Sec. 543. Powers of executors and administrators in the sale of land. The executor acts under the power con- ferred by will, if any there be; such officer also obtains powers under the statute law of the state, and when such law controls his acts he must follow the law faithfully. The administrator is purely a creature of the statute of the state in which he acts; therefore, all his powers of necessity come from that law. In Illinois and many other states the common law is in force, where such is not changed or modified by statutory enactments. If an executor nominated by will, accept the office as such, and has in reality no power conferred by the will, the law designates him a naked executor, and as such he is as much a creature of the law as an administrator; and he has no more or greater power than an administrator. The legal distinction being, the executor administers an estate under the testator's will, the administrator, an estate of a person dying without a will, and as the law which creates him directs. On the other hand, if the will confers power upon the executor to sell, mort* 453 454 THE LAW OP ESTATES. gage, rent and manage the estate of the testator, such have powers conferred upon them by the will of a deceased person, far superior to that of administrators; as a general rule courts seldom interfere with the executor exercising the power con- ferred by will, unless the abuse of such power becomes apparent. This power conferred by will upon an executor when it conforms to and is recognized by law cannot be transferred to an adminis- trator with the will annexed.^ The title to real estate, where the will so provides vests in the executor or trustee, while the title to real estate of an intestate or one dying without will, vests eo instanter, in the heirs-at-law, and no other person is seized thereof for any purpose, or authorized to exercise any act of ownership over it, save in the case of a guardian over the estate of his ward.^ The statute of IlUinois gives tke executor and administrator the right to redeem real estate from sales under judgments and decrees, but they are also given much latitude in the exercise of a reasonable discretion in such mat- ters; their duty to redeem depending largely upon the circum- stances of each particular case as it may arise; such, however, are expected to exercise the power, when the best interest of the estate demands they should redeem the real estate from any judgment or decree. On the other hand, where it is apparent the exercise of such power would be detrimental to the best interest of the estate in their hands, they may refuse to redeem.^ The statute directs that executors and administrators shall make out a full and perfect inventory of all such real and personal estate, and the proceeds thereof, as are committed to his super- intendence and management, and as shall come to his hands, possession or knowledge, discribing the quantity, situation and 1 — Stoff V. McGinn, 178 111. 55. Jones & Addington's Supplements 2— Stone v. Wood, 16 111. 177; thereto. Vol. 2, pp. 2353, 2358, Hopkins V. McCann, 19 111. 113; 2363; Vol. 4, p. 753; Vol. 5, p. 333, People V. Brooks, 123 111. 146. and cases cited under sections of 3 — See sections 18, 19, 20, 21, statutes noted in each volume; chapter 77, entitled "Judgments Hurd's R. S. of 111., 1905, same and Decrees." Starr & Curtis An- sections and chapter, pp. 1255, notated Statutes of Illinois, with 1258. EXECUTOR'S SALE OF REAL ESTATE UNDER WILL. 455 title of the real estate, etc. The act also provides for addi- tional inventory if after the making of the first inventory, any real or personal estate of deceased come to their possession or knowledge.^ Executors and administrators are chargeable with so much of the estate of the decedent, personal or real, as they, after due and proper diligence, might or shall receive. Thus under the statute of Illinois, w^here the personal estate is not sufficient to pay the just debts proved and allowed real estate will be sold for that purpose when the personalty has been exhausted.^ 544. Sale of real estate under will — surviving executor. ' ' In all cases, where power is given in any will to sell and dispose of any real estate, or interest therein, and the same is sold and disposed of in the manner and by the persons appointed in such will, the sale shall be good and valid; and where one or more executors shall fail or refuse to qualify or depart this life before such sales are made, the survivor or survivors shall have the same power and their sales shall be as good and valid as if they all joined in such sales. "^ 545. Executors must qualify in order to exercise power of sale. Executors who fail or refuse to qualify and take out let- ters testamentary cannot exercise a power given them by the will to sell real estate of the testator, and thereby bind the heirs or devisees."^ Section 97 of the Administration act has been con- strued and given effect. It is held, this provision of the statute is substantially the same as section 93 of chapter 109 of the 4 — Sections 51, 52, chapter 3, 6 — Section 97, chapter 3, "Ad- "Administration of Estates." Starr ministration of Estates." Starr & & Curtis Annotated Statutes of II- Curtis Annotated Statutes of Illi- linois. Vol, 1, pp. 289, 290, and nois, with Jones & Addington's cases cited. Supplement thereto. Vol. 1, pp. 321, 5 — Section 58, chapter 3, "Ad- 322; Vol. 4, p. 41, and cases cited ministration of Estates." Starr & under section of statute in each Curtis Annotated Statutes of Illi- volume; Kurd's R. S. of 111., 1905, nois. Vol. 1, p. 292, and authorities p. 121. cited under section of statute; 7— Chappell v. McKnight, 108 Kurd's R. S. of 111., 1905, p. 114. 111. 570. 456 THE LAW OF ESTATES. statutes of 1845, except that the latter did not contain the words ''shall fail or refuse to qualify." But at that time the statute 21 Henry VIII, chapter 4, was in force in this State, which pro- vided, that, if any or either of the persons, named as executors in the will, shall refuse to act, the right and power should devolve upon those who should qualify, to execute the will, in the same manner, as all could have done.^ It seems to be the settled rule in Illinois that, where power is given, in a will, to several executors to sell real estate, a sale by the executor, who accepts and qualifies is valid, whether the power, conferred by the will, be a mere naked power, or a power coupled with a trust, or whether the power be of a discretionary or mandatory character.^ Where a testator gave all his estate to his widow for her life, and directed that at her death it be disposed of, one-third to the testator's son, one-third to his daughter, A^ for her life, the income to be applied, by her and her husband, to her support, and to the support and education of her four children, and at her death her portion to be divided among her said children as they should, respectively, become of age, and the other third to his daughter, B, for her life, the income to be applied in the same manner as with the other daughter. Testa- tor appointed C, D and E, his executors, and authorized them to sell such portions of his real estate as they might think advantageous, and make proper conveyances. E declined to accept and qualify. C and D qualified, and the widow and D died without any sale of the real estate having been made : Held, that C, the sole surviving executor, had full power to sell and convey any of the lands of the testator in the State of Illinois.io 8 — Ely V. Dix, 118 111. 477. been created has been accom- 9 — Clienfelter v. Ayers, 16 111. plished, or has become impossible, 329; Phalman, ex'r, v. Smith, 23 or unattainable, the power itself 111. 448; Wardwell v. McDowell, 31 will cease to exist. See Taylor v. 111. 364. Smith, 21 111. 296. In the Ely 10 — Ely V. Dix, 118 111. 477. In v. Dix case, a distinction is made this case, it was held that when between the doctrine applied in the object for which a power has the Taylor v. Smith case, the doc- EXECUTOR'S SALE OF REAL ESTATE UNDER WILL. 457 546, Administrator with will annexed must apply to chan- cery to sell land in will. An administrator with the will an- nexed is not authorized to make a sale of land by virtue of the will ; such a power in the will is held to be a personal trust and confidence reposed by the testator in the executor, and so it is held, without the aid of a court of chance ly an administrator de bonis nan or with the will annexed, cannot sell the lands de- vised to such executor.ii But in line with his duty as such administrator, he may properly apply to a court of chancery to appoint trustees to sell land directed to be sold in a will.^^ 547. Death of sole executor — power conferred on adminis- trator appointed. "When a sole or surviving executor or ad- ministrator dies without having fully administered the estate, if there is personal property not administered, or are debts due from the estate, or is anything remaining to be performed in the execution of the will, the county court shall grant letters of administration with the will annexed, or otherwise, as the case may require, to some suitable person, to administer the estate of the deceased not already administered, and the securities on the bond of such deceased administrator shall be liable on the same to such subsequent administrator or to any other person aggrieved for any mismanagement of the estate committed to his care, and such subsequent administrator may have and maintain all necessary and proper actions against the securities of such formeo* executor or administrator for all such goods, chattels, trine of that case not applying, such purpose lands may be sold, where under construction of the and the money derived from such will, it directs or implies by the sale invested to create an income language used, that he intends a that will give effect to the inteu- fund to be created for the sup- tion of the testator, port and education of his chil- 11 — Hall v. Irwin, 2 Gilm. (111.) dren, grand-children or others; 176; Nicoll v. Scott, 99 111. 528; and that such object be accom- Stoff v. McGinn, 178 111. 46. plished after his death. It there- 12 — Wenner v. Thornton, 98 111. fore follows that to accomplish 156; Longwirth v. Riggs, 123 111. such object an income must be 258; Stoff v. McGinn, 178 111. 55. realized from his estate, and for 458 THE LAW OF ESTATES. debts and credits as shall have come to his possession and are withheld or may have been wasted, embezzled or misapplied and no satisfaction made for the same. Provided, that where there is still a surviving executor or administrator he may proceed to administer the estate unless otherwise provided.^ ^ A will nomi- nated the testator's wife executrix, and as such she qualified and acted. The provision of the will being that upon the death of the testator's wife, K should succeed his wife as executor, and should "dispose of my real and personal property to the best advantage, as he sees fit, and make distribution according to the provisions of the will and testament after the death of my wife, Sarah, as soon as possible." Held, the plan and purpose of the testator was that some one should act as executor after the death of his wife, Sarah. The rules laid down by eminent text writer cited in the notes are given, which in substance are to the effect. "Where a testator appoints an executor, and provides that in ease of his death another should be substituted, then on the death of the original executor, although he has proved the will, the ex- ecutor so substituted may be admitted to the office, if it appear to have been the testator's intention that the substitution should take place on the death of the original executor, whether happen- ing in the testator's lifetime or afterwards." Executors may be appointed with separate functions, or to succeed each other in the event that those first named shall die, become incapacitated or unwilling longer to serve, or two persons may be appointed to act for a definite period or during the minority, or during the absence from the country of one appointed executor. It was under the will in question held: The only purpose that could have moved the testator to designate any one to succeed his wife in the office of executor was, "that such successor should take 13 — As amended by act approved Statutes of Illinois, with Jones & April 1, 1887. In force July 1, Addington's Supplements thereto, 1887. Law, 1887, p. 1. Section 37, Vol. 1, p. 284; Vol. 4, p. 34, and chapter 3, "Administration of Es- cases cited under section of stat- tates." Starr & Curtis Annotated ute in each volume; Kurd's R. S. of 111., 1905, p. 111. EXECUTOR'S SALE OF REAL ESTATE UNDER WILL. 459 the property and effects of his estate remaining^ in the hands of his wife as executrix and life tenant, and, as his executor, devote it to the accomplishment of the purpose to which he designated and indicated in his will it should be devoted. "** The duties and powers of an administrator de bonis non, prior to the amendment of section 37 of the Administration Act cited above, were restricted to the administration of the estate of a deceased person not already administered.^^ 548. Revocation of letters — death or disqualification of ex- ecutor or administrator, etc. "Where the letters of one of sev- eral executors or administrators are revoked, or one or more of the executors or administrators die or become disqualified, after the execution of any will, but before the probate thereof, or one or more of the executors or administrators die or become disqualified after their appointment by the court, the court shall, on petition of the surviving husband, or wife, or next of kin of the testator, or if there are none such, then upon the petition of any of the beneficiaries named in such will, appoint others in their place, and require additional bonds from the new administrator, or administrators; or the survivor, or sur- vivors, or such as shall not have their powers revoked, shall proceed to manage the estate. When the letters of all of them are revoked, or all of such executors or administrators die before final settlement and distribution of the estate, adminis- 14— Kinney v. Keplinger, 172 III. D.) 458; Despard v. Churchill, 53 449. See in support of rules N. Y. 192; Woerner's Am. Law of quoted in that case, Williams on Administration, p. 394. Executors, Vol. 1, pp. 288, 289; 15— Rowan v. Kirkpatrick, 14 Lomax on Executors, Vol. 1, p. 111. 1; Kinney v. Keplinger, 172 172; Redfield on Wills, Vol. 3, p. 111., pp. 459, 460. It has always 72; also the following cases in been the rule that the adminis- support of the rule: Hartnett v. trator of a deceased executor does Wandell, 60 N. Y. 346; Carte v. not succeed to the estate of the Carte, 3 Atk. 174; Pemberton v. deceased executor's testator. Woer- Cooney, Cr. Eliz. 164; the goods of ner's Am. Law of Administration, Wilmot, 2 Roberts 579; In re p. 394; and see also, 2 Black- goods of Langford, L. R. (I. P. & stone's Com. 506; Roanoke Navi- gation Co. V. Green, 3 Dev. L. 434. 460 THE LAW OF ESTATES. tration, with the will annexed, or de honis non, shall be granted to the person next entitled thereto: Provided, that in making any appointment under this section, the court shall give prefer- ence to the surviving husband, or wife, or next of kin of the deceased, or beneficiaries named in the will, in the order named. "16 (As amended by act approved and in force March 30, 1901; L. 1901, p. 2.) In Penn v. Folgery^ will be found a discussion of the question, whether an administrator cum testa- ment o annexo has power to execute and carry out the provisions of a will in regard to powers and directions therein contained. The court holding : ' ' Executors are often required by the terms of the will, appointing them, to act in a double capacity; first, as executors by virtue of their office; and, second, as agents or trustees under a warrant of attorney." An executor is often charged, not only with the duties and liabilities appertaining to that office, but also with certain duties in the execution of a trust, which is imposed upon him by the will. The general rule is, that the duties and powers of an executor, devolve upon the administrator with the will annexed. But the duties and pow- ers, which are imposed upon an executor as a trustee, are in the nature of a personal trust or confidence reposed in him by the testator, and do not devolve upon the administrator with the will annexed, inasmuch as they cannot be delegated.^^ 549. Bond of former executor, etc. — liability. ''In all cases where any such executor or administrator shall have his letters revoked, he shall be liable on his bond to such subsequent admin- istrator, or to any other person aggrieved, for any mismanage- ment of the estate committed to his care ; and the subsequent administrator may have and maintain actions against such for- 16 — As amended by act approved Supplements thereto, Vol. 1, p. and in force March 30, 1901. Laws 285; Vol. 4, p. 34, and cases cited 1901, p. 2. Section 38, chapter 3. under section of statute; Kurd's "Administration of Estates." Starr R. S. of 111., 1905, p. 111. & Curtis Annotated Statutes of Illi- 17—182 111. 76. nois, with Jones & Addington's 18— Hall v. Irwin, 2 Gilm. (111.) 176; Nicoll v. Scott, 99 111. 529. EXECUTOR'S SALE OF REAL ESTATE UNDER WILL. 461 mer executor or administrator for all such goods, chattels, debts and credits as shall have come to his possession, and which are withheld or have been wasted, embezzled or misapplied, and no satisfaction made for the same."!*^ Under this section of the statute, the administrator de bonis non is entitled to maintain a suit against the former executor and the sureties on his bond, for the indebtedness of such former executor to the estate on a<ccount of assets received by him and converted to his own use. And in such proceeding averment and proof of demand is not necessary.20 It is a rule of the common law that the powers and the duties of an administrator de bonis non are limited to the administration of such property belonging to the decedent's estate as has not already been administered upon by the former executor or administrator. The conversion of the property of an estate into money by the executor or the administrator, is an administering upon such property, within the meaning of the foregcfing rule. An administrator de boiis non, appointed to fill a vacancy caused by the removal of an executor or administra- tor, may maintain any appropriate action or proceeding against such removed executor or administrator for any waste, mis- management or breach of duty in respect to the estate during the administration of the latter, but not so where the vacancy was caused by death. In such case the heirs, devisees or credi- tors alone can maintain the action.21 550. Resignation of executor or administrator — settlement. "An executor or administrator may, upon his petition and upon giving such notice to the legatees, devisees or distributees, as the court shall direct, be allowed to resign his trust when it appears 19— R. S. 1845, p. 552, sec. 75. 20— Nevitt v. Woodburn, 160 111. Section 39, chapter 3, "Adminis- 214, tration of Estates." Starr & Cur- 21 — Hanifan v. Needles, 108 111. tis Annotated Statutes of Illinois, 403; Marsh v. People, 15 111. 284; with Jones & Addington's Supple- Duflfin v. Abbott, 48 111. 17; Short ments thereto, Vol. 1, p. 285; Vol. v. Johnson, 25 111. 489; Rowan v. 4, p. 35; Kurd's R. S. of 111., 1905, Kirkpatrick, 14 111. 1; Newhall v. p. 111. Turner, 14 111. 338. 462 THE LAW OF ESTATES. to the county court to be proper ; and upon such resignation the court shall grant letters of administration, with the will annexed, or de bonis non, to some suitable person, to administer the goods and estate not already administered. But no administrator or executor shall be discharged till he shall have made full settle- ment with the court and complied with its orders, and shall deliver over to his successor all money, chattels and effects of the estate in his hands not paid over according to the orders of the court."-- In Smith v. Smith,^^ this section being under con- sideration, it was held : Gives the county court the power to allow an executor to resign his trust, when it appears to that court to be proper. It is to be presumed that the county court did its duty, and acted upon proper considerations when it accepted such resignation; especially as the sole devisee under the will, consented to such resignation. The matter of the sub- sequent accounting was a matter to be disposed of by the coiinty court. 22— Laws of 1849, p. 100, sec. 1; cited; Vol. 4, p. 35, and cases 1853, p. 163, sec. 1. Section 40, cited; Kurd's R. S. of 111., 1905, p. chapter 3, "Administration of Es- 111. tates." Starr & Curtis Annotated 23—168 111. 494; see also Short Statutes of Illinois, with Jones & v. Johnson, 25 111. 489; Marsh v. Addington's Supplements thereto, People, 15 111. 284; Davenport v. Vol. 1, pp. 285, 286, and cases Reynolds, 6 111. App. 532. CHAPTER XXIX SALE OF REAL ESTATE TO PAY DEBTS Sec. Sec. 551. Sale of real estate to pay 572. debts, statute. 552. Sale of realty coerced, statute. 553. Mode of commencing proceed- ings, petition, parties, stat- ute. 554. Form of petition, what should be set forth, statute. 555. Practice, the same as in chancery cases, statute. 556. Summons, when returnable, statute. 557. Service of summons, statute. 558. Notice by publication and mail, statute. 559. Publishing of notice default, statute. 560. Of persons under disability, statute. 561. Hearing, decree of sale, stat- ute. 562. Conveyance, statute. 563. Sale, time of, notice, penalty, terms, return, confirmation, statute. 564. Proceeds of sale, statute. 565. Sale of land not fully paid for, completing purchase, stat- ute. 566. Miscellaneous provisions, mis- takes, etc., statute. 567. Contracts of decedent, statute. 568. Books of account, statute. 569. Insolvent estate, statute. 570. Power of court, statute. 571. Sheriff's duties, fees, statute. 463 573. 574. 575. 576. 577. 578. 579. 580. 581. 582. 583. 584. 585. Compensation of executors, etc., statute. The act construed, statute. The early statutes relating to administrators' sales of real estate. Lands partly paid for by de- cedent, sale or completion of purchase. Relation of administrator to the real estate, rights of heirs. Jurisdiction and powers of probate court relating to sale of real estate to pay debts, before act of 1887. Jurisdiction and powers of probate courts in such mat- ter since the amendatory act of 1887. To give jurisdiction to sell, probate court must find de- ficiency of personal assets. Jurisdiction of person and subject matter of suit in such matters. Hearing and decree, overplus. The homestead and dower rights. Service, summons and notice by publication. Notice, time and terms of sale. The court must confirm the sale. The report of sale. 464 THE LAW OF ESTATES. Sec. 551. Sale of real estate to pay debts. The Administra- tion Act provides: "When the executor or administrator has made a just and true account of the personal estate and debts to the county court, and it is aycertained that the personal estate of a decedent is insufficient to pay the just claims against his estate, and there is real estate to which such decedent had claim or title, such real estate, or such portion as may be necessary to satisfy the indebtedness of such decedent, and the expenses of administration, may be sold in the manner herein provided. ' ' 552. Sale of realty coerced. Section 130 of the same chap- ter is as follows: ''Whenever real estate is required to be sold for the payment of debts, the court may make all necessary orders to coerce the executor or administrator to make imme- diate application for an order to sell such real estate, "^ 553. Mode of commencing proceedings, petition, parties. *'The mode of commencing the proceedings for the sale of real estate in such cases shall be by the filing of a petition by the executor or administrator in the circuit court or the county court of the county where letters testamentary or of adminis- tration were issued. The widow, heirs and devisees of the testa- tor or intestate, and the guardians of any such as are minors, and the conservator of such as have conservators, and all per- sons holding liens, against the real estate described in the peti- tion, or any part thereof, or having or claiming any interest therein in possession or otherwise shall be made parties. If there are persons interested in the premises whose names are not known, then they shall be made parties by the name of unknown owners. ' '^ 1— Section 98, chapter 3, "Ad- cited; Kurd's R. S. of 111., 1905, ministration of Estates." Starr & p. 121. Curtis Annotated Statutes of Illi- 2 — As amended by act approved nois, with Jones & Addington's June 15, 1887. In force July 1, Supplements thereto. Vol. 1, pp. 1887. Laws of 1887, page 3. Sec- 322, 374, and cases cited under sec- tion 99, chapter 3, "Administration tions of statute; Vol. 4, p. 41, and of Estates." Starr & Curtis An- cases cited; Vol. 5, p. 19, and cases notated Statutes of Illinois, with SALE OF REAL ESTATE TO PAY DEBTS. 465 554. Form of petition — what should be set forth. ''The petition shall set forth the facts and circumstances on which the petition is founded, in which shall be stated the amount of claims allowed, with an estimate of the amount of just claims to be pre- sented, and it shall also contain a statement of the amount of personal estate which has come to the hands of the petitioner, and the manner in which he has disposed of the same, with a statement of the amount of claims paid, a particular description of the real estate sought to be sold, and the nature and extent of all liens upon said real estate so far as the same may be known to the petitioner. The petition shall be signed by the executor or administrator and verified by his affidavit, and shall be filed at least ten days before the commencement of the term of court at which the application shall be made.^ 555. Practice, the same as in chancery cases. "Such ap- plication shall be docketed as other causes, and the petition may be amended, heard or continued for notice or other cause, and the practice in such cases shall be the same as in cases in chancery. The court may direct the sale of such real estate, disincumbered of all mortgage, judgment or other money liens that are due, and may provide for the satisfaction of such liens out of the proceeds of sale, and may also settle and adjust all equities and all questions of priority between all parties inter- ested therein, and may also investigate and determine all ques- tions of conflicting or controverted titles arising between any of the parties to such proceeding, and may remove clouds from the title to any real estate sought to be sold, and invest pur- chasers with a good and indefeasible title to the premises sold. Jones & Addington's Supplements tion 100, chapter 3, "Administra- thereto, Vol. 1, p. 325, and cases tlon of Estates." Starr & Curtis cited under section of statute; Vol. Annotated Statutes of Illinois, 4, p. 41, and cases cited; Kurd's with Jones & Addington's Supple- R. S. of 111., 1905, p. 121. ments thereto, Vol. 1, p. 327, and 3 — As amended by act approved cases cited ; Vol. 4, p. 42, and cases June 15, 1887. In force July 1, cited; Kurd's R. S. of 111., 1905, 1887. Laws of 1887, page 3. Sec- p. 121. 30 466 THE LAW OF ESTATES. The court may, with the assent of auy mortgagee of the whole or any part of such real estate, whose debt is not due, sell such real estate disincumbered of such mortgage, and provide for the payment of such mortgage out of the proceeds of such sale; and may also, with the assent of the person entitled to an estate in dower or by curtsy, or for life or for years or of home- stead to the whole or in part of the premises, who is a party to the suit, sell such real estate with the rest. But such assent shall be in writing and signed by such person and filed in the court wherein the said proceedings are pending. When any such es- tate is sold, the value thereof shall be ascertained and paid over in gross, or the proper portion of the funds invested, and the income paid over to the party entitled thereto during the con- tinuance of the estate."* 556. Summons — ^when returnable. "Upon the filing of the petition, the clerk of the court where the same may be filed shall issue a summons, directed to the sheriff of the county in which the defendant resides, if the defendant is a resident of this State, requiring him to appear and answer the petition on the return day of the summons; and where there are several defendants, residing in different counties, a separate summons shall be issued to each county, including all the defendants residing therein. Every summons shall be made returnable to the first tenn of the county court after the date thereof, unless the petition is filed within ten days immediately preceding any term, in which case the summons shall be returnable to the next term thereafter.^ 4 — As amended by act approved cited; Kurd's R. S. of 111., 1905, June 15, 1887. In force July 1, p. 121. 1887. Laws of 1887, p. 3. Sec- 5 — Section 101, chapter 3, "Ad- tion 101, chapter 3, "Administra- ministration of Estates." Starr & tion of Estates." Starr & Curtis Curtis Annotated Statutes of Illi- Annotated Statutes of Illinois, nois, with Jones & Addington's with Jones & Addington's Supple- Supplements thereto, Vol. 1, p. 329, ments thereto, Vol. 1, p. 327, and and cases cited; Vol. 4, p. 42, and cases cited; Vol. 4, p. 42, and cases cases cited; Hurd's R. S. of 111., 1905, p. 12L SALE OF REAL ESTATE TO PAY DEBTS. '467 557. Service of summons. "The service of summons shall be made by reading thereof to the defendant, or leaving a copy thereof at the usual place of abode, with some member of the family of the age of ten years and upwards, and informing such person of the contents thereof, which service shall be at least ten days before the return of such summons."* 558. Notice by publication and mail. ' ' Whenever any peti- tioner or his attorney shall file, in the office of the clerk of the court in which his petition is pending, an affidavit showing that any defendant resides ov hath gone out of this State, or on due inquiry cannot be found, or is concealed within this State, so that process cannot be served upon him, and stating the place of residence of such defendant, if known, or that, upon diligent inquiry, his place of residence cannot be ascertained, the clerk shall cause publication to be made in some newspaper printed in his coimty, and if there is no newspaper published in his county, then in the nearest newspaper published in this State, containing notice of the filing of the petition, the names of the parties thereto, the title of the court, and the time and place of the return of summons in the case, and a description of the premises described in the petition ; and he shall also, within ten days of the first publication of such notice, send a copy thereof by mail, addressed to such defendant whose place of residence is stated in such affidavit. The certificate of the clerk that he has sent such notice in pursuance of this section, shall be evidence. ' ''^ 559. Publishing of notice — default. "The notice required in the preceding section may be given at any time after the filing of the petition, and shall be published at least once in each week for four successive weeks, and no default or pro- 6— Section 102, chapter 3, "Ad- 7 — Section 104, chapter 3, "Ad- ministration of Estates." Starr ministration of Estates." Starr & & Curtis Annotated Statutes of II- Curtis Annotated Statutes of Illi- linois, Vol. 1, p. 329, and cases nois. Vol. 1, p. 329, and cases cited ; cited; Kurd's R. S. of 111., 1905, p. Kurd's R. S. of 111., 1905, p. 122. 122; Ottenger v. Specht, 162 111. 182. 468 THE LAW OF ESTATES. ceeding shall be taken against any defendant not served with summons, and not appearing unless forty days shall in- tervene between the first publication, as aforesaid, and the first day of the term at which such default or proceeding is proposed to be taken. "^ 560. Of persons under disability. "When it appears that any of the persons required to be made parties defendant, who have been served with summons or notified as aforesaid, are minors, under the age of twenty-one years if males, or eighteen years if females, without a guardian resident in this State, or are persons having conservators, or where such guardian, if any, or conservator, shall not be personally served with summons or shall not appear, the court shall appoint a guardian ad litem, who shall appear and defend in behalf of such minors, and be allowed such compensation as may be fixed by the court. ^ ' 561. Hearing — decree of sale — overplus. "Upon hearing the cause upon the issues formed or taken, the court shall hear and examine the allegations and proofs of the parties and of all other persons interested in the estate who may appear and become parties; and if, upon due examination, the court shall find that the executor or administrator has made a just and true account of the condition of the estate, and that the personal estate of the decedent is not sufficient to pay the debts against such estate, the court shall ascertain, as nearly as can be, the amount of deficiency, and how much of the real estate described in the petition it is necessary to sell to pay such deficiency, with the expenses of administration then due or to accrue and make a decree for the sale thereof: Provided, that where any 8 — Laws of 1857, p. 138, sec. 5. sec. 9, chapter 100, entitled "No- Section 105, chapter 3, "Adminis- tices;" Kurd's R. S. of 111., p. 1413. tration of Estates." Starr & Cur- 9 — Laws of 1857, p. 139, sec. 6. tis Annotated Statutes of Illinois, Section 106, chapter 3, "Adminis- with Jones & Addington's Supple- tration of Estates." Starr & Cur- ments thereto, Vol. 1, p. 330; Vol. tis Annotated Statutes of Illinois, 4, p. 42, and cases cited; Kurd's R. Vol. 1, p. 330, and cases cited; 5. of 111., 1905. p. 122. See also Kurd's R. S. of 111., 1905, p. 122. SALE OF REAL ESTATE TO PAY DEBTS. 469 houses and lots, or other real estate, are so situated that a part thereof cannot be sold without manifest prejudice to the heirs, devisees or owner, the court may order the sale of the whole or such part as it may deem best, and the overplus arising from such sale shall be distributed among the heirs and devisees, own- ers, or such other persons as may be entitled thereto."^** 562. Conveyances. "All such sales of real estate shall be made and conveyances executed for the same, by the executor or administrator applying for such order, and shall be valid and effectual against the heirs and devisees of such decedent, and all others claiming by, through, or under him or them. In case of the death of the executor or administrator applying for an order of sale before conveyance is made, the administrator de bonis non shall proceed in the premises and make conveyances in the same manner as if he had originally applied for such order — which conveyance shall be good and valid."** 563. Sale — time of — notice — penalty — terms — ^return — con- firmation. "No lands or tenements shall be sold by virtue of any such order of the county court, unless such sale is at pub- lic vendue, and between the hours of ten o'clock in the fore- noon and five o'clock of the afternoon of the same day, nor unless the time, place and terms of holding such sale were previ- ously published for the space of four weeks, by putting up notices thereof in at least four of the most public places in the county where such real estate shall be sold, and also by causing a similar notice thereof to be published four successive weeks 10— Laws of 1857, p. 139, sec. 8. 11— Laws of 1857, p. 139, sec. 9. Section 107, chapter 3, "Adminis- Rev. Stat. 1845, p. 559, sec. 105. tration of Estates." Starr & Cur- Section 108, chapter 3, "Adminis- tis Annotated Statutes of Illinois, tration of Estates." Starr & Cur- with Jones & Addington's Supple- tis Annotated Statutes of Illinois, ments thereto. Vol. 1, p. 331, and with Jones & Addington's Supple- cases cited; Vol. 4, p. 42, and cases ments thereto. Vol. 1, p. 108, and cited; Vol. 5, pp. 19, 20, and cases cases cited; Vol. 4, p. 42, and cases cited; Kurd's R. S. of 111., 1905, cited; Vol. 5, p. 20, and cases cited; p. 122. Kurd's R. S. of 111., 1905, p. 122. 470 THE LAW OF ESTATES. prior to the sale, in some newspaper published in such county, or if there be no such newspaper then in such other newspaper in this State as the court shall direct, nor unless such real estate shall be described with common certainty in such notices. And if any executor or administrator, so ordered to make sale of any real estate, shall sell the same contrary to the provisions of this act, he shall forfeit and pay the sum of five hundred dol- lars, to be recovered by an action of debt, in the name of the People of the State of Illinois, for the use of any person inter- ested, W'ho may prosecute for the same : Provided, that no such offense shall affect the validity of such sale: And provided further, that such executor or administrator may sell the same on a credit of not less than six, nor more than twelve months, by taking notes, with good personal security and a mortgage, or sale mortgage, or the premises sold, to secure the payment of the purchase money. It shall be the duty of the executor or administrator making such sale, on or before the firet day of the next term of the court thereafter, to file in the office of the clerk of said court a complete report of said sale, giving a description of the premises sold, to whom, w'here, and upon what terms sold, and a general statement of the manner in which the terms of the decree were executed. Any person interested in the premises sold, and any creditor of the estate, may file exceptions to such report, and upon the hearing thereof the court may approve such report and confirm the sale, or dis- approve the same and order the premises to be re-sold. "^^ 564. Proceeds of sale. ''When real estate is sold, the moneys arising from such sale shall be received by the executor 12 — As amended by act approved 4, pp. 42, 43, and cases cited under April 7, 1875. In force July 1, section of statute in each volume; 1875. R. S. 1845, p. 559. sec. 106. Kurd's R. S. of 111., 1905, p. 123. Laws of 1875, page 1, sec. 1. Sec- See also sec. 48, chapt. 22, "Chan- tion 109, chapter 3, "Administra- eery," Starr & Curtis, etc.. Vol. 1, tion of Estates." Starr & Curtis p. 592; Vol. 4, p. 105, and cases Annotated Statutes of Illinois, cited under section of statute in with Jones & Addington's Supple- each volume; Kurd's R. S. of 111., ments thereto, Vol. 1, p. 333; Vol. 1905, p. 233. SALE OF REAL ESTATE TO PAY DEBTS. 471 or administrator applying for the order to sell, and shall be assets in his hands for the payment of debts, and shall be applied in the same manner as assets arising from the sale of personal property. "13 565. Sale of land not fully paid for — completing purchase. "In all cases where a decedent is seized of a legal or equitable title to real estate, the payment whereof has not been completed, and the estate of such decedent is unable to make complete payment therefor, with advantage to such estate, the adminis- trator or executor may sell or dispose of such real estate upon the order of the county court, and the money arising from such sales shall be assets in the hands of such executor or ad- ministrator, as in other eases. But in all cases where the estate of any such decedent shall be solvent, and such lands as afore- said may be paid for without prejudice to the creditors, heirs and devisees of the estate, the executor or administrator shall complete the payment for the same out of the proceeds of the personal property, in the name of the heirs or legal representa- tives of the decedent entitled thereto; and he shall be allowed a credit for the amount of such payments, and all reasonable expenses incurred in making the same, upon final settlement of such estate: Provided, that the provisions of this section shall, in nowise, interfere with the provisions of any last will or testa- ment. "^^ Where the decedent is seized of the legal or equit- able title to land, payment for which has not been completed, and cannot be made by the estate to its advantage, the probate court, under section 111 of the Administration Act, may ordor 13— Section 110, chapter 3, "Ad- lands (R. S. of 1845, p. 559, sec. ministration of Estates." Starr & 111, p. 560, sec. 112, relating to Curtis Annotated Statutes of II- complete purchase of public linois. Vol. 1, p. 336, and cases lands). See Starr & Curtis Anno- cited; Kurd's R. S. of 111., 1905, tated Statutes of Illinois, with p. 123. Jones & Addington's Supplements 14 — Section 111, chapter 3, "Ad- thereto. Vol. 1, p. 336, and cases ministration of Estates." This cited; Vol. 4, p. 43, and cases section, rewritten and extended to cited; Kurd's R. S. of 111., 1905, all cases of complete purchase of p. 123. 472 THE LAW OF ESTATES. a sale of the land; but the purchaser at the sale merely takes the place of the decedent and his heirs, the purchaser being entitled to a conveyance upon payment of the balance due on the purchase priee.^^ 566. Miscellaneous provisions, sections of the same chapter — mistake, etc. *'No executor or administrator, or his security, shall be chargeable beyond the assets of the testator or intestate, by reason of any omission or mistake in pleading, or by false pleading of such executor or administrator. "^^ 567. Contracts of decedent. "All contracts made by the decedent may be performed by the executor or administrator when so directed by the county court. "^'^ 568. Books of account. "The books of account of any deceased person shall be subject to the inspection of all persons interested therein, "^^ 569. Insolvent estate. "If, after the expiration of two years from the time administration is granted on an estate, such estate is found to he insolvent, it shall be so entered of record by the county court, and such order (being) made, no action shall be maintained against the executor or administrator of such estate, except at the costs of the party suing; but persons entitled thereto shall receive their proportions of such estate as herein provided. "1^ 15— Fitzgerald v. Turner, 223 111. cited; Kurd's R. S. of 111., 1905, 322. p. 126; Wheeler v. Wheeler, 105 16— Section 126, chapter 3, "Ad- 111. App. 51. ministration of Estates." Starr 18 — Section 128, chapter 3, "Ad* & Curtis Annotated Statutes of II- ministration of Estates." Starr & linois. Vol. 1, p. 347, and cases Curtis Annotated Statutes of Illi- cited; Kurd's R. S. of 111., 1905, nois, Vol. 1, p. 347, and cases cited; p. 126. Kurd's R. S. of 111., 1905, p. 126. 17— Section 127, chapter 3, "Ad- 19— Section 129, chapter 3, "Ad- ministration of Estates." Starr & ministration of Estates." Starr & Curtis Annotated Statutes of lUi- Curtis Annotated Statutes of Illi- nois, Vol. 1, p. 347, and cases nois. Vol. 1, p. 347; Kurd's R. S. of 111., 1905, p. 126, SALE OF REAL ESTATE TO PAY DEBTS. 473 570. Power of court. "County courts shall have power to enforce the observance of all orders, decisions, judgments and decrees made by them in discharge of their duties under this act; and they may issue attachments for contempt offered such court or its process, by any executor, administrator, witness or other person; and may fine and Imprison, or either, all such offenders, in like manner as the circuit courts may do in similar cases. ' '20 571. Sheriff's duties— fees. "The sheriff shall, when re- quired by the court, attend all sessions of said court, either by himself or deputy, and shall preserve good order in the court, and execute all writs of attachments, sununonses, subpoenas, citations, notices and other processes which may, at any time, be legally issued by such court, and make return thereof. And such sheriff' shall be entitled to the same fees as he is allowed for similar services in the circuit court. "^^ 572. Compensation of executors, etc. ''Executors and ad- ministrators shall be allowed as compensation for their services a sum not exceeding six per centum on the amount of personal estate, and not exceeding three per centum on the money arising from the sale of real estate, with such additional allowances for costs and charges in collecting and defending the claims of the estate and disposing of the same, as shall be reasonable. "^2 573. The act construed. *'A11 the provisions in this act relative to an executor or administraitor shall apply and ex-tend. 20 — Section 131, chapter 3, "Ad- sec. 19, chapter 125, "Sheriffs"; ministration of Estates." Starr & Kurd's R. S. of 111., 1905, pp. 628, Curtis Annotated Statutes of lUi- 1878. nois, Vol. 1, p. 348, and cases cited; 22 — Section 133, chapter 3, "Ad- Hurd's R. S. of 111., p. 126. ministration of Estates." Starr & 21 — Section 132, chapter 3, "Ad- Curtis Annotated Statutes of Illi- ministration of Estates." Starr & nois, with Jones & Addington's Curtis Annotated Statutes of Illi- Supplements thereto, "Vol. 1, p. 348, nois, Vol. 1, p. 348; Kurd's R. S. and cases cited; Vol. 4, p. 45, and of 111., 1905, p. 126. See also sec- cases cited; Kurd's R. S. of 111,, tion 9, chapter 37, "Courts"; also 1905, p. 126. 474 THE LAW OF ESTATES. to an executrix or administratrix, or executors or administrators, and vice versa, unless otherwise expressly provided for; and whenever the singular number or the masculine gender is men- tioned, the provisions shall apply to two or more, and to the feminine gender, as the case may require; and this act shall be liberally construed so that its true intent and meaning may be fully carried out.''^^ 574. The early statutes relating to administrators' sales of real estate. Prior to the amendments of the administration Act in 1887, there was much conflict growing out of adminis- trator's sales of real estate. The early statutes were narrow and insufficient and did not confer upon county courts sufficient power to enable such courts to furnish by their decrees and proceeding in this respect a popular and satisfactory title. In fact under the early statutes, one was constantly in doubt when purchasing at administrator's sales, whether or not in reality he purchased lands or a law suit. But in the year 1887 and since, the legislature of this State by its combined wisdom enacted laws, conferring upon coimty and probate courts in such matters sufficient power to make titles derived from admin- istrator's sales absolutely safe and good. The decrees of the county courts having probate jurisdiction and probate courts, carry with them restored confidence and a generally safe, sure and merchantable title follows such sales into the purchaser; particularly is this so, if the existing statutes be strictly fol- lowed in such proceedings. And ^till better the Supreme Court of this State in its decisions since the new enactments have generally upheld the powers, decrees and proceedings of such courts and thereby aided much to make such titles good. In previous sections we have given the statute complete, in aid of such proceedings for sale of lands to pay debts. The statutes are 23— Section 134, chapter 3, "Ad- of 111., 1905, p. 126; see also sec- ministration of Estates." Starr & tion 1, chapter 131, "Construction Curtis Annotated Statutes of Illi- of Statutes"; Kurd's R. S. of 111., nois. Vol. 1, p. 349; Kurd's R. S. 1905. p. 1946. SALE OF REAL ESTATE TO PAY DEBTS. 475 the greatest guide. Yet the details that enter into every case must be worked out with the decisions of court, and com- pletely for safety, covered by each decree entered in such matter. 575. Lands partly paid for by decedent — sale or completion of purchase. "Section 67 of chapter 3 entitled 'Administra- tion of Estates,' providing for the probating of claims not due, must be considered in connection with section 111 of the same chapter and the two must be construed together. Accordingly, a claim by a vendor of land, under contract for the unpaid pur- chase money cannot bo proved up against the estate of the pur- chaser unless the estate is solvent; and the payment may be made without prejudice to the creditors, heirs and devisees of the estate. And whether payment of such claim against the estate for unpaid purchase money of land can be made, with advantage to the estate, must be determined by the county court, and not by the administrator. If, under the last clause of sec- tion 111, the probate court determines that the estate is solvent, and the land may be paid for without prejudice to the creditors, heirs and devisees, the claim may be allowed, and the adminis- trator may complete the payment out of the assets of the estate in his hands for the payment of debts, in due course of adminis- tration. When the two sections of the statute are construed, this is a fair and reasonable construction to be placed upon them — a construction which will do no injustice to the vendor of land under a contract where the payments are not due ; and at the same time afford protection to small estates. Where the vendor cannot have his claim allowed against the estate, he holds the land as security for his debt and is thus protected from loss, and at the same time a small estate, which might be consumed in paying for land purchased, if the land claim should be allowed, will be preserved for the payment of ordi- nary debts and for distribution among the widow and heirs of the deceased.^^ 24 — Miskimen v. Culbertson, 162 notated Statutes of Illinois, with 111. 236. See Starr & Curtis An- Jones & Addington's Supplements 476 THE LAW OF ESTATES. 576. Relation of administrator to the real estate — ^rights of heirs. The judgment of the county court allowing the debts of a creditor against an estate, is, as between the creditor and the administrator, conclusive until reversed or impeached for fraud. ^ As stated heretofore, an administrator does not take title to real estate, that vests in heirs-at-law of deceased. The administrator takes a power of sale he may use in certain con- tingency, that is when it becomes necessary to sell lands to pay debts.26 And when the administrator applies for leave to sell the real estate for the purpose of paying creditors of the estate whose claims have been reduced to judgment, such judgment is not conclusive as against an heir at law.-'^ The administrator only represents and controls personal property. The heir and administrator are not in privity; the admissions of an adminis- trator do not bind the heir, and the heir may contest an applica- tion for sale of real estate.^s Jt^ji^ in a recent case the doctrine of these early cases is restated as follows: "Though the judg- ment held by appellant may be binding on the personal assets of the estate, it is of no avail against the heir in proceedings to sell the land for the payment of debts. The heir, may notwith- standing the judgment, urge any infirmity in the original in- debtedness.29 577. Jurisdiction and powers of probate court relating- to sale of real estate to pay debts, before the act of 1887. Prior to the amendments of sections 99, 100 and 101, in 1887,^0 and thereto, Vol. 1, pp. 300, 336; Vol, Fitzgerald v. Turner, 223 111. 322. 4, pp. 36, 43; Vol. 5, p. 18, and See also Ante 565. cases cited under section of stat- 25 — Wood v. Stone, 16 111. 177; utes 67 and 111, chapter 3, "Ad- Hopkins v. McCann, 19 111. 112. ministration of Estates" in each 26 — Burr v. Bloomer, 174 111. volume cited; Hurd's R. S. of 111., 638. 1905, pp. 116, 123. Under section 27— Wood v. Stone, 16 111. 177. Ill of the Administration Act, the 28 — Hopkins v. McCann, 19 111. probate court may order a sale of 112; Gibson v. Gibson, 82 111. 61; the land not fully paid for, and in Marshall v. Rose, 86 111. 374. such case the purchaser takes the 29 — Aden v. Bear, 97 111. App. place of decedent and his heirs. 347. 30 — Ante, 553, 554, and notes. SALE OF REAL ESTATE TO PAY DEBTS. 477 Tinder the act of 1857, construed in Harding v. LeMoyne,^^ it was held : The administrator had but a mere power to sell for the payment of debts; and this right could only be enforced through the instrumentality of some court specially authorized to act ; and whether the power is conferred on a circuit, probate or county court, makes no difference; as the power and juris- diction to enforce and give effect to the right are the same in either case. As such right could only be enforced through the instrumentality of some court clothed with special authority for that purpose the act must be construed so as to give full force and effect to the right. Whatever, therefore, was necessary to effectuate the sale of the 'Hitle or claim" which the deceased had to the land sought to be sold, the court could lawfully do, but it did act on the title or claim as it found it. The right of the administrator under the act did not extend to the removing of clouds upon or obstructions standing in the way of the title, and without such right the court could not apply a remedy, for every remedy which the law affords must necessarily be respon- sive to some legal right. Under that act the court found the amount of the indebtedness, ordered the sale, fixed its terms, and prescribed the manner of conducting it in so far as such was not done by the statute itself; the court could either ap- prove the sale or set it aside. And as a necessary incident to the power to make the sale, the court determined whatever questions arose in respect to the payment of the purchase money, or the sufficiency of the conveyance and, in short, all questions relating to the sale or transfer of the land. In re- spect to the land itself, the court was required to find a sin- gle simple fact, namely, that the deceased had title or a claim to it. That others might have claims to the same land, whether before the court or not, was a matter of no consequence, for the court was not authorized to investigate or pass upon them. The lien of the creditors upon the land for the payment of their claims after the personal assets had been exhausted, was coex- 31—114 111. 65. 478 THE LAW OF ESTATES. tensive with the title or claim of the deceased, whether it was good or bad, and the heirs and devisees took subject to the lien. It followed that a valid sale by the administrator or executor cut off whatever title or claim the heirs or devisees had, but a claim founded upon an independent source of title would not be affected by such sale. Under the old statute, widows, heirs, devisees and guardians of minors were neces- sary parties defendants, not to settle conflicting titles, but to prevent injustice. Prior to the amendatory act of June 15, 1887, conflicting claims of title could not be litigated in the county court, yet it was necessary to set them up to advise the purchaser of the nature and character of title."- 578. Jurisdiction and power of probate courts relating to sale of real estate to pay debts since the amendatory act of 1887. Under the act of June 15th, 1887, amending sections 99, 100 and 101, of the act in relation to the administration of estates,^^ the powers of county courts and probate courts in pro- ceedings to sell lands for the payment of debts are greatly en- larged as compared to former act in this regard. The act of 1887, provides, that all persons holding liens against the real estate or any part thereof, described in the petition of the executor or administrator and all persons having or claim- ing any interest in such real estate or any part thereof, in pos- session or otherwise, shall be made parties to such proceeding; that the practice in such cases shall be the same as in cases in chancery, and that the court may settle and adjust all equities, and all questions of priority, between all parties interested, therein, and may also investigate and determine all questions of conflicting or controverted titles arising between any of the parties to such proceeding, and may remove clouds from the title to any real estate sought to be sold, and invest the pur- chasers with a good and indefeasible title to the premises sold.^* 32— Bowers v. Block, 129 111. 33— See Ante 553, 554, 555 for 424; Kenley v. Bryan, 110 111. 652; statute citations. Harding v. Le Moyne, 114 111. 65. 34— Laws of 1887, p. 3, for act of 1887. SALE OF REAL ESTATE TO PAY DEBTS. 479 In Newell v. Montgomery, ^^ the constitutionality of the araenda- torj^ act of 1887, conferring these additional powers upon county and probate courts was upheld; the court saying: "It will be seen that the constitution in conferring upon probate courts jurisdiction in cases of sales of real estate of deceased persons for the payment of their debts, in no way attempted to define or limit the procedure in cases of that character. That is left entirely to legislative discretion. It was therefore competent for the General Assembly to prescribe any procedure which in its judgment was appropriate. There was then no constitu- tional objection to assimilating it to that which obtains in courts of chancery. Such procedure is certainly as appropriate for the purpose as any which the laws of the State provide or rec- ognize. Nor is there any constitutional objection to a provision requiring all parties interested in the land to be brought before the court and have their rights litigated and ascertained prior to a sale. In case of most judicial sales such provision has always existed. The theory is that the estate in the laud which it is proposed to sell can be sold more advantageously and with the expectation of realizing a better price, after the interests of all parties have been determined, so that the purchaser may know precisely the nature and extent of the estate for which he is bidding. A procedure which requires an adjudication of the rights of all parties in interest before a sale is certainly not inappropriate to eases of sales of the lands of deceased persons for the payment of debts, its advantages being just as manifest there as in cases of other judicial sales. That it has not prevailed in pTObate courts heretofore is not because it was expressly or impliedly prohibited by the constitution, but because it was not provided for by the statute, "^s Under sec- tion 101,3''^ as amended in 1887, the probate court has power, 35—129 111. 58. utes of Illinois, Vol. 1, pp. 153, 36 — See section 18, article 6, 154, and cases cited under sections Constitution of Illinois, 1870; see noted. also section 20 of same article. 37 — Ante, 555. for statute, sec- Starr & Curtis Annotated Stat- tion 101, chapt. 3, "Administration of Estates." 480 THE LAW OF ESTATES. when an application is made by an administrator to sell real estate of a deceased for payment of debts to ascertain the amount due on mortgage liens; to direct the sale of such lands discharged of such liens; and if such liens are not due direct the sale subject thereto; and the court by its decree may pro- vide for the payment and satisfaction of such mortgage liens that are due and payable out of the proceeds arising from such sale. The court may settle and adjust all equities between the parties as well as all questions of priority in the lands or in the proceeds from the sale thereof; and with the assent in writing of the widow, direct that the lands be sold, free and discharged from homestead estate and right of dower; and, after such sale, the court may ascertain the value of such homestead estate and right of dower, and order the same paid out of the proceeds.^^ In the absence of a bill of exceptions or certificate of evidence, it will be presumed the findings of fact recited in an order for sale of real estate to pay debts are correct. Also, that the court by its order did not impose more upon a particular tract than its proper portion. And it is also held, if real estate and bank stock are both specifically given by a will both should abate ratably for the payment of debts, unless the debts are expressly or impliedly charged upon the real estate.^^ 579. To give jurisdiction to sell real estate probate court must find a deficiency of personal assets. It is a well estab- lished fundamental rule, the personal estate of a deceased is primarily liable for the payment of his debts. And it is equally well established, no resort can be had to the real estate of de- ceased until the personal estate is exhausted or shown to be in- sufficient to pay the just debts and claims against such estate.**^ Where it appears that the administrator omitted to make a just and true account, required by section 98 of the "administration 38— Virgin v. Virgin, 91 111. App. 134; Sutherland v. Harrison, 86 204; Cutler v. Cutler, 188 111. 285; 111. 363; Diversey v. Johnson, 93 Hayack v. Will, 169 111. 145. 111. 547; Harding v. LeMoyne, 114 39— Danel v. Arnold, 201 111.570. 111. 65; Danel v. Arnold. 201 111. 40— McLean v. McBean, 74 111. 579. SALE OF REAL ESTATE TO PAY DEBTS. 481 act" such omission is cured by the finding of the probate court in the usual form that the amount of assets, and the amount of claims allowed against the estate, show a deficiency of personal assets.*^ ''Where it is ascertained that the personal estate of a deceased person is insufficient to pay the just claims against his estate, and there are lands to which he had title, it is the duty of the administrator under section 99 of chapter 3 enti- tled "Administration of Estates" to proceed to sell the same for the payment of debts. And it is held, intestate's lands should not be sold merely to pay expenses of administration.^ 2 It is erroneous to order sale of land when no claims against estate have been allowed by the court to which application is made, although such claims have been allowed by a probate court of another State. A judgment against an administrator in one State is no evidence of indebtedness against another ad- ministrator of the same decedent in another State, for the pur- Piose of affecting assets received by the latter under his ad- ministration. ^^ The administrators are not regarded as in privity vath each other.^* But where an executor's sale was made under a decree of the circuit court of Cook county to pay debts of his testator, and no question arises on the record as to the regularity, in form of the sale, it was held: The sale can- not be impeached or set aside because sold to pay debts not pre- sented and formally probated in the county court. It was sufficient the executor had been notified of the existence of the claims, and demand made to pay them ; and, whether they were secured or not, being bana fide indebtedness due from the es- tate, the obligation rested upon the executor to raise funds, so far as this could be done from the estate to meet them.^^ A citizen of another State, in which administration has been 41 — ^Madden v. Cooper, 47 111. 43 — Hobson v. Payne, 45 III. 158. 359. 44— Rosenthal v. Renich, 44 111. 42 — Ante 553, for statute in 207; Story's Conflict of Laws, sec. question; Virgin v. Virgin, 91 111. 522. App. 204; Fitzgerald v. Glancy, 49 45 — Williams v. Rogers, 81 111. 111. 465; Walker v. Diehl, 79 111. 571. 473. 31 482 THE LAW OF ESTATES. granted upon an estate, may come to this State and cause ad- ministration to be taken out liere, have a claim allowed, and real estate sold for its payment; and, in such case, it is not necessary to show that the personal estate in the other State has been exliausted.'^^ But a judgment rendered in a foreign State against an executor appointed and acting in Illinois alone, is of no force in Illinois; and courts of this State cannot allow such judgment as a claim against the estate upon the filing of a transcript; as such a judgment is not even prima facie evi- dence of indebtedness.^''' It is to be inferred from the holding in Elting v. First National Bank,"^^ that proof should be made of such claim in the way pointed out by the statute law of this State when filing the transcript of a judgment of any other State. 580. Jurisdiction of persons and subject matter of suit re- lating to sales of real estate to pay debts. Jurisdiction of the person is acquired by service or voluntary appearance."*^ Juris- diction of the subject matter is acquired, by the filing of a petition to sell the real estate, by the executor or administrator, containing the necessary allegations, which, under the statute law, requires the court to act, i. e., "that there are debts against the estate and that there is no personal property, or there being such, that it is insufficient for the payment of debts.^*^ And where the record in such proceeding to sell to pay debts, shows a finding by the court of the necessary facts to give jurisdic- tion, the burden of proof rests upon the party assailing the title thus acquired to show the court did not acquire jurisdic- 46— Rosenthal v. Renick, 44 111. Oettinger v. Specht, 162 111. 182; 207. Cassell v. Joseph, 184 111. 378; 47 — Elting V. First National Krieger v. Krieger, 221 III. 479. Bank, 173 111. 368, p. 389; Heden- 50— Bree v. Bree, 51 111. 367; berg V. Hedenberg, 46 Conn. 30. Moffitt v. Moffitt, 69 111. 641; Di- 48—173 111. 368. versey v. Johnson, 93 111. 547; 49— Botsford v. O'Connor, 57 111. Harding v. LeMoyne, 114 111. 65; 72; Clark v. Thompson, 47 111. 25; Virgin v. Virgin, 91 111. App. 204. Reedy v. Canfield, 159 111. 254; SALE OF REAL ESTATE TO PAY DEBTS. 483 tion, by clear and satisfactory evidence.^^ Justice Magruder speaking for the court in Cassel v. Joseph, said: In this State the county court, although a court of limited jurisdiction, is not, strictly speaking, a court of inferior jurisdiction. It is a court of record, and has a general jurisdiction of unlimited ex- tent over certain classes of subjects. When acting within that sphere, its jurisdiction is as general as that of the circuit court. When the county court acts within the limits of its jurisdiction, liberal intendments will be indulged in favor of its judgments and decrees, the same as they are indulged in favor of the judg- ments and decrees of the circuit court.^^ The principle, that presumptions will be entertained in favor of the jurisdiction of courts of general jurisdiction, has been applied to cases where the decree is silent as to the service of process upon the de- fendants.'^ 2 Where the record of a judgment or decree is relied on collaterally, jurisdiction must be presumed in favor of a court of general jurisdiction, although it is not alleged or fails to appear in the record.'^* Where a decree is called in question collaterally, it is regarded as a general rule, in all courts of general jurisdiction that nothing is presumed to be out of their jurisdiction but what specially appears to be so; but, on the contrary, nothing shall be intended to be within the jurisdic- tion of an inferior court but that which is expressly alleged. "^^ Where the decree is silent as to the jurisdiction of the court over the defendants, and there is no evidence showing that jurisdiction was not acquired, it will be presumed that the court had jurisdiction.^^ The rule, that nothing shall be intended to be out of the jurisdiction of a superior court except that which 51 — Kilgour V. Gockley, 83 111. 54— Wenner v. Thornton, 98 III. 109; Cassel v. Joseph, 184 111. 383. 156. 52— Barnett v. Wolf, 70 111. 76; 55— Benefield v. Albert, 132 111. Propst V. Meadows, 13 111. 157; 665-671; Bradley v. Drone, 187 111. Von Kettler v. Johnson, 57 111. 175; Swearington v. Gulick, 67 111. 109; Matthews v. Hoff, 113 111. 90. 208. 53— Swearington v. Gulick, 67 56— Reedy v. Canfield, 159 111. 111. 208-212. 254. 484 THE LAW OF ESTATES. expressly appears to be so, is applicable where there is a col- lateral attack upon the record of the court, which is silent as to service upon the parties. The presumption of jurisdiction in such case embraces not only jurisdiction of the subject mat- ter, but also of the parties.^^ Should the record disclose noth- ing, jurisdiction over the person as well as the subject matter will always be presumed when the validity of the judgment is questioned collaterally.^^ It will be presumed that the coimty court had jurisdiction to enter a decree for a sale by an administrator to pay debts, though the record does not affirma- tively show that defendants in the proceedings were served with process; and where no objection was made to the validity of the decree for thirty years, and no evidence is offered in the collateral proceedings attacking it, to show want of jurisdiction it will be presumed that court had jurisdiction.^^ In a parti- tion suit, in which a decree was entered before the great Clii- cago fire of 1871, which destroyed the records of the court, it is held : Service on defendants will be presumed after the expira- tion of twenty years from a decree of a tribunal acting within its jurisdiction.^"^ Mere irregularities in the proceedings of the county court with reference to an administrator's sale do not afford a basis for collateral attack.*^^ Under the Colorado deci- sions it is held, that in a proceeding to sell real estate, the ad- ministrator must comply strictly with the statute, in order to bind and conclude interested parties.^^ 581. Hearing and decree — overplus. Section 107, chapter 3 entitled "Administration of Estates," gives the probate court power in a proceeding to sell lands of a deceased person to pay debts by executors, and administrators to enter an order caus- 57— Nickrans v. Wilk, 161 111. 60— Nickrans v. Wilk, 161 111. 76-83. 76. 58— Cassell v. Joseph, 184 111. 01- Bradley v. Drone, 187 111. 383. 175. 59— Nickrans v. Wilk, 161 111. 62— Fillmore v. Keithman, 6 76; Cassell v. Joseph, 184 111. 383. Colo. 130. SALE OF REAL ESTATE TO PAT DEBTS. 485 ing the lands of such persons to be surveyed and platted.®^ In a proper proceeding probate courts and county courts having probate jurisdiction, may by their decrees direct sale of every kind of real estate which deceased owned when he died; and also determine by such decrees the interest of all parties to the proceeding, where such courts have acquired jurisdiction of the person and subject matter of the suit.®^ And the probate court, when material to the proceedings to sell real estate to pay debts, may by its decree find the interest of a trustee in a deed of trust ; particularly, where the property described in such deed of trust relates to, or inciunbers the property sought to be sold by such proceedings. And such court may by its decree ascertain the amount due if any, under such deed of trust, and such other matters and facts as may appear to the court essential or material in such proceedings to sell the decedent's real estate.^^ A decree in such proceedings is for sale of decedent's interest in the real estate, and the court acts on decedent's title as it finds it.^® 582. The homestead and dower rights. The adjustment of the homestead and dower rights must of necessity, and do fre- quently enter into proceedings to sell real estate to pay debts; the adjustment of these rights may arise in various ways.^'^ Among othei' things, the probate court, under the statute may, with the assent of the persons entitled to an estate in dower, or by the curtsy, or for life or for years, or of homestead to the whole or in part of the premises, who is a party to the suit ad- 63 — See statute, cited in text, 129 111. 58; Virgin v. Virgin, 91 111. Ante 563. Section 11, chapter 109, App. 204; Cutler v. Cutler, 188 111. entitled "Plats." Starr & Curtis 285; Hayack v. Will, 169 111. 145. Annotated Statutes of Illinois, Vol. 65 — Kittridge v. Nicholes, 162 3, p. 2973; Kurd's R. S. of 111., 111. 410. 1905, p. 1529. 66— Harding v. LeMoyne, 114 111. 64— See sections 99, 100, 101, 65; Wenninger v. Fietsam, 29 111. chapter 3, "Administration of Es- App. 648. tates," quoted in full. Ante 553, 67 — Section 101, chapter 3, "Ad- 554, 555; Kenley v. Bryan, 110 ministration of Estates," for etat- 111. 652; Newell v. Montgomery, ute see Ante 555. 486 THE LAW OF ESTATES. just all such rights; but such assent shall be in writing and signed by such persons, and filed in the court wherein the said proceedings are pending. When any such estate is sold the value thereof shall be ascertained and paid over in gross, or the proper proportion of the funds invested and the income paid over to the party entitled thereto, during the continuance of the estate.^^ "That every householder, having a family, shall be entitled to an estate of homestead, to the extent in value of $1,000, in the farm or lot of land and buildings thereon, etc." "Such exemption shall continue after the death of such house- holder, for the benefit of the husband or wife surviving, so long as he or she continues to occupy such homestead, and of the children until the youngest child, becomes twenty-one years of age, etc." "No release, waiver or conveyance of the estate so exempted shall be valid, unless the same is in writing, sub- scribed by said householder and his or her wife or husband, if he or she have one, and acknowledged in the same manner as conveyances of real estate are required to be acknowledged, or possession is abandoned or given pursuant to the conveyance; or, if the exemption is continued to a child or children, without the order of a court of competent jurisdiction directing a re- lease. "^^ "In construing these several sections and different statutes they are to be construed in pari materia. The husband entitled to a homestead dying and leaving a widow and chil- dren, the homestead becomes vested in the widow, who may sell, encumber or abandon the same. In case of a sale or in- cumbrance by such widow, with proper acknowledgment, the conveyance or lien is complete against the children. They are not vested with a right equal to that of the widow, but their right is subordinate to hers. She dying, they become vested with the estate of homestead if under twenty-one years of age; and 68— Ante 554, 555. thereto. Vol. 2, pp. 1865, 1871, 1874, 69 — See section 1, chapter 52, and cases cited under sections of "Exemptions." Sections 2, 4 of statute; Vol. 4, pp. 614, 615, 616, same chapter. Starr & Curtis An- and cases cited; Vol. 5, pp. 257, notated Statutes of Illinois, with 258, and cases cited; Kurd's R. S. Jones & Addington's Supplements of 111., 1905, pp. 1043, 1044. SALE OF REAL ESTATE TO PAY DEBTS. 487 the last clause of section 4 of chapter 52 applies to them; or if there be no vridow, but children of required age, that clause also applies. By the provisions of the Probate Court act.'^ Under these various provisions of the statutes of this State, the probate court of any county where such court is established by law, has power to enter a decree to sell land to pay debts, and, with the assent of persons entitled to an estate in dower, or for life, or for years, or of homestead in the whole or part of the premises, who is a party to the suit, may include such particular estate to be sold with the rest, where the assent is in writing, signed, and etc. The widow surviving, with chil- dren also surviving, is vested with the estate of homestead, and her assent would be conclusive on the children and would bar their right to a homestead therein. An exception to this rule exists in a case where the householder leaves minor children by a former marriage, and the surviving husband or wife is only step-parent to such children. In such case, if the step- parent does not stand in loco parentis he owes no duty of sup- port to such children, and cannot convey, release, abandon or dispose of the homestead so as to extinguish their interest. '^'^ Where the sale of a homestead is held in such case, the pro- ceeds thereof should be distributed to the surviving householder and the step-children in proportion to their respective inter- ests.'- A widow has no right to consent to a sale of her home- stead that would defeat the right of the heirs thereto; thus a widow in delicate health, with an infant child dependent upon her for support, whose homestead is a small farm which she could not till or occupy or rent, would be practically deprived of the benefit of such homestead. In such case it is held, that 70 — Hayack v. Will, 169 111. 145, county courts under the "Adminis- pp. 148, 149. See Probate Court tration Act." Act, Ante, chapt. 1, sec. 2. Probate 71 — See note (69) citing stat- courts in counties having a popu- utes. Hayack v. Will, 169 111. 145, lation of more than 70,000 are construing and giving effect to vested with the same powers and same. jurisdiction with reference to the 72 — Capek v. Kropik, 129 111. sale of land to pay debts, as are 509. 488 THE LAW OF ESTATES. the widow may consent to a sale of the homestead, and thereby bar the right of her children to a homestead in the land.'^^ Chil- dren residing with their father, who has a homestead estate in the residence property owned by his divorced wife, are not necessary parties to bill by her to have such homestead set off.'^* The law is well settled to this effect; that where the homestead premises do not exceed $1,000 in value, they cannot be sold to pay debts by the administrator of a deceased householder until after the termination of the exemption in favor of the widow and children.'^^ And the holders of unsatisfied claims may wait until the homestead estate is extinguished before ap- plying for a sale of the property, even though more than twenty years have elapsed since such claims were alio wed J ^ But when a married woman joins with her husband in the execution of a mortgage upon his lands, she waives her homestead estate and right of dower in the lands. ^'^ And under section 4 of the Dower Act, where the wife fails to join in a purchase money mortgage she is not entitled to dower as against the mortgagee or those claiming under him, but is entitled to dower as against all other persons.'^^ A widow is entitled to be endowered of one-third of the proceeds of a sale of real estate to pay debts remaining after payment of mortgage liens and after deducting $1,000 for the homestead interest, if such exists. A husband's homestead and dower rights in the lands of his wife are determined by the law in force at the death of his wife; and under the law in force in this State since 1874, a wife has no power to devise her home- stead to another, and thus deprive her husband of that estate J» These rights created by statute law, may be enlarged, dimin- ished or abolished as the legislature may direct, at any time 73— Capek v. Kropik, 129 111. 76— People v. Langham, 189 111. 509. 326. 74— Cutler v. Cutler, 188 111. 285. 77— Selb v. Montague, 102 111. 75— Hartman v. Schultz, 101 111. 446. 437; Oettinger v. Specht, 162 111. 78— Frederick v. Emig, 186 111. 179; Mueller v. Conrad, 178 111. 319. 276; Hannah v. Palmer, 194 111. 79— Henson v. Moore, 104 111. 41. 403. SALE OF REAL ESTATE TO PAY DEBTS. 489 before they become vested estates by the death of the person from whom they are derived. Any change, however, in the law after that will have no bearing on the parties' rights.^*^ And it is held, the heirs, by paying off the mortgage debt upon lands, may require the husband or wife who are endowed to con- tribute his or her proportionate part of the debt.^^ 583. Service summons and notice by publication. The serv- ice of summons must be had by reading.*^ j^ guardian has no power to admit service for ward.^^ And so as to persons under legal disability.^* Period of notice by publication is fixed by law approved June 11, 1897, in force July 1, 1897.^^ A sum- mons issued and made returnable to a term, when less than ten days intervene, is void, and confers no jurisdiction.^^ 584. Notice time and terms of sale. Section 109, chapter 3, entitled "Administration of Estates" directs "the time and terms of sale that are a part of the decree or order of the court for sale. And in such case, the power of the executor or ad- 80 — Henson v. Moore, 104 111. 84 — Section 25, chapter 86, 403. "Lunatics, etc." (1) Starr & Curtis 81— Montague v. Selb, 106 111. 49; Annotated Statutes of Illinois, Vol. McNeer v. McNeer, 142 111. 388; 1, p. 2090, and cases cited; Hurd's Kusch V. Kusch, 143 111. 353. See R. S. of 111., 1905, p. 1133. (2) also sections 1 to 6, chapter 41, Starr & Curtis Annotated Statutes "Dower." Starr & Curtis Anno- of Illinois, Vol. 1, p. 2668; Hurd's tated Statutes of Illinois, with R. S. of 111., 1905, p. 1348; Wing v. Jones & Addington's supplements Dodge, 80 111. 564. thereto. Vol. 2, pp. 1456, 1462, 85— Section 9, chapter 100, "Act 1463; Vol. 4, p. 446; Vol. 5, p. 180, to regulate service by publication and cases cited under sections of in courts of record and to repeal statute in each volume; Hurd's R. acts in conflict therewith." Starr S. of 111., 1905, pp. 768, 769. & Curtis Annotated Statutes of II- 82 — Section 104, chapter 3, "Ad- linois, with Jones & Addington's ministration of Estates." Ante Supplements thereto. Vol. 4, pp. 558; Oettinger v. Specht, 162 111. 904, 905; Hurd's R. S. of 111., 1905, 182. p. 1413. See also Loeb v. Stern, 83— Clark v. Thompson, 47 111. 198 111. 383. 25; Chambers v. Jones, 72 111. 276; 86— Matthews v. Hoff, 113 111. section 30, chapter 64, "Guardian 90; Sloan v. Graham, 85 111. 26. and Ward." 490 THE LAW OF ESTATES. ministrator is derived from the decree and he must sell ac- cording to its terms,^^ This section of the statute indicates the administrator or executor must be present at the sale, and the authorities so hold.^s Objections to sale that power was dele- gated must be urged with reasonable diligence.^^ But what is reasonable diligence in one ease may not be considered so in another; the circumstances, facts and conditions of each case seem to move the court to action, when it concludes a remedy should be applied to right a grievous wrong.^*^ When the terms of the sale by the decree of the court, require the same to be for cash, and where such a decree is for debts allowed the execu- tor or administrator has a right to demand that a bidder shall make a cash deposit as a guarantee that he will consummate the purchase if the court approves the sale ; and when such demand is made by the administrator or executor it will constitute no sufficient grounds for setting aside a sale.''^ The bidder at a judicial sale bids for title conferred by the decree of sale, and if he refuses to comply with his bid, he cannot after sale of property to another for less sum than he bid, be compelled to pay difference between amount bid by him and the amount for which the property was finally sold, unless he was cited before the court which rendered decree for sale, and in such court be given an opportunity to show cause for refusing to complete purchase.92 j>^ bidder at a judicial sale, if he discovers before complying with his bid that the decree or judgment is inade- quate to transfer such title as the deoree pretends to confer, he may decline to complete his purchase.^^ The rule of caveat emptor applies to all judicial sales, and has been in the following cases applied to administrators' sales.^* If fraud or mistake 87 — See statute cited in text, Bank, 173 111. 381, and cases cited. Ante 563; Reynolds v. Williams, 15 91— Allen v. Shepard, 87 111. 314; 111. 394. Mueller v. Conrad, 178 111. 281. 88— Sebastian v. Johnson, 72 111. 92— Tilton v. Pearson, 67 111. 282; Kellogg v. Wilson, 89 111. 357. App. 373. 89— Kellogg V. Wilson, 89 111. 93— Tilton v. Pearson, 67 111. 357. App. 373. 90— Elting V. First National 94— Shup v. Calvert, 174 111. 502; SALE OF REAL ESTATE TO PAY DEBTS. 491 enter into transaction, collusion or other serious irregularities the sale will be held invalid.^^ And it is held: The adminis- trator may withdraw realty from sale after decree and before completion of sale, where the heirs come forward and advance money sufficient to pay debts of estate; or if new assets of a personal character are discovered that may be used to pay debts, the administrator may withdraw realty from sale."^ It is a well settled doctrine that an administrator cannot either directly or indirectly purchase at his own sale, and, if he does, creditors injured may in proper proceedings set the sale aside.^^ 585. The court must confirm the sale — the report of sale. After the sale, under section 109 of the statute cited,"^ the ex- ecutor or administrator must make report of sale, and by such instrument fully inform the court what was in fact done at such sale. The approval or disapproval of such report will then follow. Until the sale is confirmed it is not a sale in the legal sense.^^ ' ' Until the sale is confirmed, ' ' says Borer on Judi- cial Sales,^ "it is only a sale in the popular sense, and not a legal or judicial sale. The chancellor has a broad discretion in the approval or disapproval of such sale. The accepted bid- der acquires, by the mere acceptance of his bid, no independent right .... to have the purchase completed, but is merely a preferred proposer until confirmation of the sale by the court, as agreed to by its ministerial agent Confirmation is final consent, and the court, being in fact the vendor, may consent or not, in its discretion." A county court may, before confirmation, disapprove a conservator's sale made subject to its approval. Where, though the sale is regularly and fairly made, if it clearly appears to the court that a re-sale will be advan- tageous to the estate of the party under disability, whose inter- Sexton V. Sikking, 90 111. App. 97 — Elting v. First National 669. Bank, 173 111. 381. 95— Lockwood v. Mills, 39 111. 98— Anfe 563. 602; Tilley v. Bridges, 105 111. 336. 99— Hart v. Burch, 130 III. 426. 96 — Bozza v. Rowe, 30 111. 198. 1 — Rorer on Judicial Sales, sec. 124 et seq. and cases cited in notes. 492 THE LAW OP ESTATES. ests the court is bound to watch over and protect, and the court may in its discretion in such case order a re-sale.2 The cases which seem to make a distinction, between a sale by a master in chancery and one by an administrator or conservator, in fact, all of the cases, where judicial sales have been upheld, arose upon a state of facts distinguishable from those of Jennings v. Dunphy,^ where the sale was disapproved. There the purchase money had been paid, a deed delivered to the purchaser, and, in some instances, the property had been conveyed to third par- ties. In all, a considerable length of time, ranging from six months to nineteen years, was allowed to elapse between the sale and the proceedings to set it aside ; and in many cases where the purchaser had made lasting and valuable improvements. Minors have a right to maintain a bill in chancery to impeach a decree, when their rights are prejudiced by the decree en- tered.^ And it is also held that an offer to indemnify minors against loss, made after re-sale is ordered, comes too late, even if it could have any .force whatever.^ 2 — Jennings v. Dunphy, 174 111. that case from others on the facts. 86. 4 — Johnson v. Buck, 220 111. 226. 3—174 111. 86, p. 91, and cases 5 — Compton v. McCafEree, 220 111. cited on that page, distinguishing 137. CHAPTER XXX SETTLEMENT OF EXECUTORS AND ADMINISTRATORS — DISTRIBLTTION Sec. 586. Annual and final settlements of executors and administra- tors. Notice to heirs. 587. How annual and final ac- counts are treated. 588. Notice required by statute must be given heirs before final account is approved. 589. The remedy by appeal and what will be considered in such case. 590. Closed estates, final order ef- fect of. 591. Miscellaneous provisions ap- plicable in accounting. 592. Distribution to creditors. 593. Settlement enforced, con- tempt, interest on assets. Sec. 594. Failure to pay over devastO' vit. 595. Liability of representatives for interest. 596. Removal of representatives of estate by probate courts. 597. Demand, arrest, commitment and imprisonment of repre- sentative. 598. Failure to pay over, devasta- vit, liability of sureties. 599. Order for payment of legacies. 600. Bond from distributees to re- fund. 601. Refunding by distributees. 602. Suits between associate rep- resentatives. Sec. 586. Annual and final settlements of executors and ad- ministrators — notice to heirs. "All executors and administrators shall exhibit accounts of their administration for settlement, to the county court from which the lettere testamentary or of ad- ministration was obtained, at the first term thereof after the ex- piration of one year after the date of their. letters and in like manner every twelve months thereafter or sooner, if required, until the duties of their administration are fully completed: Provided, that no final settlement shall be made and approved by the court, unless the heirs of the decedent have been notified 493 494 THE LAW OF ESTATES. thereof, in such manner as the court may direct."^ Under the well settled law of this State, and ever since the leading case of Lewis V. Lyons,^ it has been continually held, the administrator takes the absolute title to the personal estate as trustee for the heir or heirs or distributees, such being entitled to the surplus after payment of the costs of administration and the just debts against the estate in the administrator's hands. The administra- tor, therefore must discharge the duties of a trustee imposed by the statute upon him.^ Under this statute the court of probate is required to enforce the settlement of the accounts of executors and administrators; and such court may act in such matter on its own motion or on that of interested parties.* Thus an ex- ecutor who is also a legatee under a will occupying a dual re- lation to the administration of an estate, has official acts to per- form, that are under the control of the court of probate; and this control of such court over the executor as such, will continue until the estate is administered and the residue turned over to the acting executor as legatee under the order of court.^ 1 — R. S. 1845, p. 56, section 123. in the county court challenging Section 112, chapter 3, "Adminis- the correctness of the annual re- tration of Estates." Starr & Cur- ports filed by a deceased executor tis Annotated Statutes of Illinois, is in substance a chancery proceed- with Jones & Addington's supple- ing, wherein the Supreme Court ments thereto. Vol. 1, pp. 336, 337, will review the facts on appeal and cases cited; "Vol. 4, p. 43, and from the Appellate Court. In the cases cited; Vol. 5, p. 20, and cases same case it is also held: The ac- cited; Kurd's R. S. of 111., 1905, p. ceptance by residuary legatees of 123. amounts admitted to be due by the 2 — 13 111. 121. executor and ordered by the court 3 — Lewis V. Lyons, 13 111. 121; to be paid Ihem as their distrib- Penn v. Folger, 182 111. 76. utive shares, will not estop such, 4 — Rowan v. Kirkpatrick, 14 111. before final settlement, from chal- 1; Marsh v. The People, 15 111. lenging the correctness of the ex- 284; Duffin v. Abbott, 48 111. 17; ecutor's report on which the dis- Tracey v. Hadden, 78 111. 30; tribution is based. Cawes V. Whitman, 10 Conn. 121; 5— Ridgeley v. The People, 163 United States v. Walker, 109 U. S. 111. 112. In this case it is held: 258; Williams on Executors, 375, That one who is, by the terms of 2057; Bliss v. Seaman, 165 111. 429. a will, bound to close the admin- In the latter case it is held: That istration of an estate upon the a claim filed by residuary legatees death of the executrix, has such SETTLEMENT OF EXECUTORS, ETC. 495 587. How annual and final accounts are treated. A partial or annual account of an executor or administrator is usually an ex parte proceeding, and is only a judgment de bene esse and only considered prima facie correct, and although not excepted to or appealed from, is open to subsequent correction or chal- lenge.^ But upon a final accounting, the court may hear testi- mony for the purpose of correcting former accounts and re- ports.'^ And the presumption of law is that such court heard only competent evidence relating to such matter.^ In the ad- justment of final accounts of the representatives of estates the court of probate has equitable jurisdiction and may correct er- roneous charge of executor against himself.^ But payment by mistake without an order of court cannot effect the settlement an interest in the matter of set- tlement as will enable him to com- pel the executrix to file a report, as executrix, with the county or probate court. 6 — 7 Am. & Eng. Ency. of Law, 442, and cases cited; Bond v. Lock- wood, 33 111. 212; Long v. Thomp- son, 60 111. 27; Bennett v. Hanifen, 87 111. 31; Bliss v. Seaman, 165 111. 428; Marshall v. Coleman, 187 111. 569. 7 — Ford V. First National Bank, 100 111. App. 73; Same v. Same, 201 111. 120. In this case it is held to be the duty of an executor or ad- ministrator to guard the interests of creditors of the estate, and when a claim is presented for al- lowance the law will hold every creditor to be represented by such executor or administrator. In that case, the question arose as to how far the probate court could look into and correct the allowance of claims after the term at which they are allowed. The court hold- ing, as between the creditors and the heirs-at-law, such may be done. upon a petition filed for the sale of real estate to pay debts, but a distinction is to be made of the effect of the allowance of a claim as to an heir and as to a creditor or legatee. Ward v. Durham, 134 111. 195. So far as real estate is concerned, the allowance of a claim is merely prima facie evidence of the debt due by the estate. Noe v. Moutray, 170 111. 169. But as against the personal estate an al- lowance of a claim is concFusive until reversed by a superior tri- bunal, unless impeached for fraud, accident or mistake, citing: Cook V. Wood, 24 111. 295; Stone v. Wood, 16 111. 177; Gould v. Bailey, 44 111. 491; Wheeler v. Dawson, 63 111. 54; Ward v. Durham, supra; Schlink v. Maxton, 153 111. 447; Sherman v. Whiteside, 190 111. 576. 8 — Emerick v. Hileman, 71 111. App. 521. 9— Millard v. Harris, 119 111. 185; Harris v. Millard, 17 111. App. 512; He ward v. Slagle, 52 111. 336; Pinneo v. Goodspeed, 120 111. 524. 496 THE LAW OF ESTATES. of the estate; and in such case no action can be maintained to recover back such payment.i*^ It is held where there is gross negligence that might have been avoided by an executor or ad- ministrator, the court may charge against the representative of the estate such sum of money as might have been realized by such representative by the exercise of reasonable care and dili- gence.ii The payment of claims by an executor, without re- quiring their probate, casts the burden upon the executor of showing their validity,^ ^ 588. Notice required by statute must be given the heirs before final account is approved. A final settlement without notice as required by statute is void.^^ The principle is very general, subject to few exceptions, that all persons whose rights are to be affected by an order or judgment of a court, must have notice, actual or constructive, of the pendency of the proceed- ing against them. Parties in interest must be parties in a suit or proceeding which may affect their interests. The case cited is a good illustration of the propriety of this rule; for, had the distributees, or their guardians, been notified that an order of distribution was to be entered, they could have resisted that portion of the order which allowed appellant, as widow one- third of the surplus, the legality of which is not pretended by her counsel. Were this a bill in chancery for distribution, it will not be denied all the distributees would be made parties.^* The principle that notice to parties must be given, to conclude them, pervades the entire realm of jurisprudence.^^ The notice required by the statute is presumed to have been given, where 10— Foskett V. Wolf, 19 111. App. 13— Long v. Thompson, 60 111, 33; Lochenmeyer v. Fogarty, 112 27; Mitford's Ch. 39; Story's Eq. 111. 572. PI. 185. 11 — In re Corrington's Estate, 14 — Morris v. Hogle, 37 111. 150; 124 111. 363. Long v. Thompson, 60 111. 27. 12 — Emerick v. Hileman, 177 111. 15 — Hopkins v. McCann, 19 111. 368; Litch v. Clinch, 136 111. 410; 116; Collins v. Kinnare, 89 111. Holeton v. Thayer, 89 111. App. App. 241; Cagney v. O'Brien, 83 187. 111. 72; Dickson v. Hitt, 98 111. 300. SETTLEMENT OF EXECUTORS, ETC. 497 the court acts upon final report of administrator; but such presumption may be overcome by evidence showing there was in fact no notice.^*' But the final settlement may be impeached for fraud by proper proceedings in a general court of ehan- cery.i''^ It is held, that a' notice to widow and heirs of a mo- tion to set aside order approving executor's report is unneces- sary.18 In the case in question it was found the court had juris- diction to entertain a motion to set aside the order approving a report for an omission therein, as the result of fraud or mis- take and make provision for fees. It being held, that in the absence of an express waiver by an executor of his right to fees, it is the duty of the court of probate to determine the amount to be allowed him, and the fact that the executor makes no entry for fees in his final report, is not a waiver, since he has no right to fix his own fee. 589. The remedy by appeal and what will be considered in such. case. It has been repeatedly held that each item in an administrator's account is a separate claim depending alone upon its own merits, having no connection with the other items ; and that an appeal by the administrator from an order or judg- ment, rejecting one of his claims against the estate, only brings up for review the propriety of the ruling in respect to such rejected claim.^^ In a recent case it is again held, that an appeal from an order disallowing part of claim does not bring up for review other parts of such claim allowed in the court below.2o 590. Closed estate — final order — effect of. Final settlement approved by the court is conclusive between distributee and 16— Eagan v. Clark, 87 111. App. 185; Curtis v. Brooks, 71 111. 125 248. Morgan v. Morgan, 83 111. 196 17 — Anderson v. Anderson, 178 Marshall v, Coleman, 187 111. 585 111. 164. People v. Kohlsaat, 168 111. 39. 18— Griswold v. Smith, 221 111. 20— Peterman v. U. S. Rubber 341. Co., 221 111, 581. 19— Millard v. Harris, 119 111. 31 498 THE LAW OF ESTATES. executor, administrator or ^lardian and their sureties.21 No collateral attack can be made upon an order of the court of probate approving representative's final account and report.22 Where an administrator completes the settlement of an estate, and an order of final settlement is signed by judge, but not entered of record, the court of probate may enter it nunc pro tunc?^ And it is held an estate is closed, notwithstanding no final order of discharge is entered, if it appears the executor has filed his final account by which he shows a complete admin- istration of the estate, and which account has been eonsidared and approved by the court of probate.^* 591. Miscellaneous provisions applicable in accounting. A payment to heirs may be ordered at the time of presenting first account, without waiting for expiration of year from grant of letters, particularly is this so, where no creditor or other interested party are affected by such order.^^ If an estate is declared insolvent and closed under section 59 of the Adminis- tration Act,26 the administrator in that case, is not required to give notice of final settlement.^'^ A discharge of an adminis- trator before all debts are paid is void as to unpaid creditors, who by a proper proceeding may pursue the sureties on the bond of administrator. 28 Omission to make a final report may make administrator liable.-^ But one who receives from an executor more money than he is entitled to, cannot complain of erroneous credits in the executor's account, particularly, where there is no fraud chargeable to the executor.^" The bal- 21— People V. Lease, 71 111. 394. 27— Wood v. Johnson, 13 111. 22— People v. Kohlsaat, 168 111. App. 548. 3g_ 28 — Diversey v. Johnson, 93 111. 23-Frame v. Frame, 16 111. 125. ^^'^' Blanchard v. Williams. 70 111. 647. 24-People v. Kohlsaat, 66 111. 29-Rucker v. Redmon, 67 111. App. 507; Same v. Same, 168 111. jg^ g^^ ^j^^ ^^^^^^^^ chapter 3, "Administration of Es- 25— Reynolds v. People, 55 111. tates." {Post 593.) 328. 30— Williams v. Rhodes, 81 111. 26— Ante 425. 571. SETTLEMENT OF EXECUTORS, ETC. 499 ance from an ancillary administration should be returned to the principal administration.^^ 592. Distribution to creditors. "Upon every such settlement of the accounts of the executor or administrator, the court shall ascertain the whole amount of moneys and assets belonging to the estate of the deceased, which have come into the hands of such executor or administrator, and the whole amount of debts established against such estate; and if there is not sufficient to pay the whole of the debts, the moneys aforesaid, shall be ap- portioned among the several creditors pro rata, according to their several rights, as established by this Act; and thereupon the court shall order such executor or administrator to pay the claims which have been allowed by the court, according to such apportionments. And the court, upon every settlement, shall proceed in like manner until all the debts are paid, or the as- sets exhausted. "32 Where an administrator acting under an honest belief that the estate he represented was solvent, paid a creditor more than his pro rata distributive share of such estate ; and afterwards brought suit at law against such creditor for money had and received for the use of the estate; held action was rightly brought under the circumstances.*^^ An interlocu- tory order of distribution made by the probate court was by that court corrected at a term subsequent to the term at which such order was entered; it being held, the probate court had power to correct its records at a subsequent term.-^^ 593. Settlement enforced — contempt — interest on assets. ' ' The county courts of this State shall enforce the settlements of 31 — Young V. Wittenmyre, 123 124; see also the following cases 111. 303. supporting the statute, and in ad- 32 — R. S. 1845, p. 562, sec. 124. dition thereto see Ante 463; Am- Section 113, chapter 3, "Adminis- mons v. People, 11 111. 6; Arm- tration of Estates." Starr & Curtis strong v. Cooper, 11 111. 560; Annotated Statutes of Illinois, Phelps v. People, 78 111. 149; Dun- with Jones & Addington's Supple- lop v. McGee, 98 111. 287; Mack v. ments thereto. Vol. 1, p. 338, and Woodruff, 87 111. 570. cases cited; Vol. 4, p. 44, and cases 33— Wolf v. Beaird, 123 111. 585. cited; Hurd's R. S. of 111., 1905, p. 34— Kinne v. Schumacher, 65 111. App. 344. 500 THE LAW OF ESTATES. estates within the time prescribed by law, and upon the failure of an executor or administrator to make settlement at the next term of the court after the expiration of said time, the court shall order a citation to issue to the sheriff of the county where the executor or administrator resides, or may be found, requir- ing said executor or administrator to appear at the next term of the court and make settlement of the estate, or show cause why the same is not done; and if the executor or administrator fails to appear at the time required by such citation, the court shall order an attachment requiring the sheriff of the county where the executor or administrator resides, or may be found, to bring the body of said executor or administrator before the court ; and upon failure of an executor or administrator to make settlement under the order of the court after having been so attached, he may be dealt with as for contempt, and shall be forthwith removed by the court, and some discreet person ap- pointed in his stead ; the costs of such citation or attachment to be paid by the delinquent executor or administrator, and the court shall enter a judgment therefor, and a fee bill may issue thereon. All moneys, bonds, notes and credits which any ad- ministrator or executor may have in his possession or control as property or assets of the estate, at a period of two years and six months from the date of his letters testamentary or of ad- ministration, shall bear interest, and the executor or adminis- trator shall be charged interest thereon from said period at the rate of ten per cent, or after two years and six months from any subsequent time that he may have discovered and received the same, unless good cause is shown to the court why such should not be taxed. "^'^ 35 — Laws of 1859, p. 95, section cited; Kurd's R. S. of 111., 1905, p. 10. Section 114, chapter 3, "Ad- 124; see also section 70 Adminis- ministration of Estates." Starr & tration Act as amended in 1903 Curtis Annotated Statutes of Illi- (ante 482), by which the time for nois, with Jones & Addington's Sup- settlement and distribution of es- plements thereto, vol. 1, p. 339, tates was reduced from two to one and ca.ses cited; vol. 4, p. 44, and year. See also section 7, chapter ^ases cited; vol. 5, p. 20, and cases 148, entitled "Wills" (chapter vii. SETTLEMENT OF EXECUTORS, ETC. 501 594. Failure to pay over— devastavit. "If any executor or administrator shall fail or refuse to pay over any moneys or dividend to any person entitled thereto, in pureuance to the order of the county court, lawfully made, within thirty days after demand made for such moneys or dividend, the court, upon application, may attach such delinquent executor or ad- ministrator, and may cause him to be imprisoned until he shall comply with the order aforesaid, or until such delinquent is dis- charged by due course of law; and moreover, such failure or refusal on the part of such executor or administrator shall be deemed and taken in law to amount to a devastavit, and an ac- tion upon such executor's or administrator's bond, and against his securities, may be forthwith instituted and maintained; and the failure aforesaid to pay such moneys or dividend, shall be a sufficient breach to authorize a recovery thereon. "^^ 595. Liability of representatives for interest. Section 114 of the Administration Act,^"^ requires that the administrator be charged with interest at the rate of ten per cent per annum on balance in his hands as administrator from the period of two years and six months after the issuance to him of the letters of administration, unless good cause is shown why he should not be so charged. And the burden of showing an excuse for not mak- ing a distribution within the legal time is cast upon the admin- istrator.38 After the time for presenting claims has expired and the administrator has filed a report showing a cash balance in his hands belonging to the heirs of decedent, he should ap- ante 125), reducing time for con- 1905, p. 124. See also section 13, test of will from two to one year, et seq., chapter 103, entitled "Of- 36— R. S. 1845; p. 562, sec. 126. ficial Bonds" Starr & Curtis, etc.. Section 115, chapter 3, "Adminis- "Vol. 2, p. 2835, and cases cited; Vol. tration of Estates." Starr & Curtis 4, p. 907, and cases cited; Kurd's Annotated Statutes of Illinois, R. S. of 111., 1905, p. 1419. See with Jones & Addington's Supple- McDonald v. People, 222 111. 325; ments thereto, vol. 1, pp. 340, 341, also (post 597). and cases cited; vol. 4, p. 44, and 37 — Ante 593, statute quoted, cases cited; Kurd's R. S. of 111., 38 — Haskins v. Martin, 103 111. App. 115. 502 THE LAW OF ESTATES. ply for an order of distribution. It is part of his duty to do so,^^ And if he fails to do so after two years and six months from the date of letters of administration he is chargeable with ten per cent annual interest on moneys, notes, bonds and credits in his possession and control as assets of the estate.^^ And he may be liable for interest before that time, if it appears he re- ceives interest on the funds of the estate in his hands.*^ The term "settlement" as used in section 114, refers to an account- ing to ascertain the condition of the estate, that the order for distribution may follow.*^ 596. Removal of representatives of estate by probate courts. Power is conferred on such courts by the statutes of Illinois, to remove representatives of estates for many causes, therein set forth.'*^ It will be found from an examination of the au- thorities in point, that the established doctrine of this State, is, that courts of probate, must consistently and strictly follow the statute when proceeding to remove any representative of an estate from office. And it is well settled in this State, that where such courts assume incidental power and remove a representa- tive under such assumed power, disregarding the statute in the exercise of such power, their orders in that regard will not be sustained; particularly is this true, where such court assumes jurisdiction under special statutory laws in cases where a pen- alty attaches, or an offense is committed criminal in its na- ture.*^ In the case of Ra/nifan v. Needles,'^^ where section 114 of the Administration Act formed the basis of the proceeding for 39— /TO re Estate of Schofield, 99 iZ—Ante 593, sec. 114, chapt. 3, 111. 513; Randolph v. Trustees of "Administration of Estates." Schools, 26 111. App. 241; Haskins 44— See sections 26, 30, 31, 32, V. Martin, 103 111. App. 115. 114, 115, chapter 3, "Administra- 40 — Marshall v. Coleman, 1S7 tion of Estates." Ante 430, 431, 111. 556. 433, 435, 593, 594, where sections 41 — In re Estate of Schofield, 99 of statute in question are set forth 111. 513; Hough v. Harvey, 71 III. at large; see also cases cited under 72. sections of this work noted. 42— Randolph v. Trustees of 45—108 111. 403. Schools. 26 111. App. 241. SETTLEMENT OF EXECUTORS, ETC. 503 issuing a citation against an executor, directing him to appear before the county court at a day fixed ''and present his accounl of said estate for settlement as said executor," the county court assuming power under such citation to remove, did remove such executor from his office. It is held in that case, page 411 : ' ' The coimty court has no power, in any case, to remove an executor or administrator upon a mere citation to appear and settle his accounts. The power of removal is not an incident to the pro- ceeding under such a citation, and hence any attempted removal was unauthorized. The only legal consequences which attach to one's failure to appear and make settlement of his accounts, is, that he subjects himself to an attachment, as in case of a con- tempt, and in such case it is made the duty of the court to order an attachment for his arrest, and when brought before the court, if he still neglects or refuses to make settlement of his accounts, the court is then required to deal with him as for a contempt, and to forthwith remove him. The removal is required not only in the interest of the estate, but it is doubtless also intended as a punishment for contempt. To remove one before he is at- tached and brought into court, would be in effect to punish him for an alleged offense he has had no opportunity of answering, which is inconsistent with the genius and spirit of our free in- stitutions, as well as violative of the organic law of the State.'*^ 597. Demand — arrest — commitment and imprisonment of representative. In the case of Haines v. The People,*'' citing from page 177, it is held: Before the probate court is war- ranted in making a commitment in any case under section 114 of the Administration Act, it must appear, among other things, that the administrator has failed or refused to pay over the moneys in his hands, to the pei-son or persons entitled thereto, in pursuance of the order of the court, within thirty days after demand made for such moneys. A demand upon the adminis- 46 — Holding the same, as Hani- ler v. Hider, 9 Colo. Ct. of App. fan V. Needles, the following: 56. Monroe v. People, 102 111. 406; Mil 47—97 111. 161. 504 THE LAW OF ESTATES. trator for the moneys is clearly one of the necessary elements that enter into the offence which authorizes such commitment." Page 178 : "On principle, the fact of a demand as a constituent part of the offense contemplated by the statute, could no more be dispensed with by mere agreement than the element of mal- ice in murder, or felonious intent in larceny. As well might it be contended that a thing may exist as a whole without all of its constituent parts. It is impossible in the very nature of things. And it is equally impossible by mere private agreement to dispense with any of the elements that enter into a criminal offence; the power to do that is vested in the legislature alone. It may be urged that having waived the demand, the adminis- trator is just as culpable for failing to pay over the money as if the demand had been made The conclusive answer to this is, that the offence consists in failing to pay over after demand made, and not after demand waived, and there is no power outside of the legislature to substitute one for the other. ' ' It is also held in the same case, that a writ of error from the Supreme court lies to review the order of the probate court committing for contempt. And it is held, where an order of the court of probate granted time for payment, demand must be made after expiration of such order. Demand made prior to the entry of such an order is a nullity.'*^ The court can im- prison only upon state of facts mentioned in statute; and be- fore committing administrator the court should find the amount of money, property or choses in action in the hands of the ad- ministrator or that should be in hand belonging to the estate. For if it should appear, the administrator had no money of the estate in his hands to pay a claim, the court could not commit or imprison.*^ There must be evidence of a demand for the payment of money due the petitioner under the order of the court.^" Where an administrator committed by the order of 48— Johnson v. Von Kettler, 66 291; Von Kettler v. Johnson, 57 111. 63; Wright v. People, 61 111. 111. 109. 382. 50— Blake v. People, 161 111. 74. 49 — Gorton v. Frizzell, 20 111. In this case, the executor was com- SETTLEMENT OF EXECUTORS, ETC. 505 the county court, for a failure to pay a petitioning claimant, sets up as a defense, that he, the administrator was surety on a certain note given by the petitioning claimant, and as such administrator, advanced and paid from the funds of the estate the said note, with the agreement, between himself and the claimant, that the amount so advanced, should be deducted from any money due the petitioning claimant under the final order of court in the estate he represented, was held to be a good de- fense to the action of the county court committing for con- tempt.^i And it also appears that a set-off will be allowed as a matter of common justice, where the administrator committed or sought to be committed, is properly entitled to such against a claimant in the county court in such matter.^ 2 n ig j^eid that section 115 of the Administration Act, providing for the im- prisonment of an executor or administrator refusing to pay over money "within thirty days after demand," does not postpone the bringing of a civil action against his bondsman until the expiration of that period. A judgment finding amount due from an administrator and approving his report by the probate court is binding in a suit on his official bond, and cannot be reviewed or set aside in a suit upon the administrator's bond, unless it be impeached for fraud.^^ 598. Failure to pay over — devastavit — liability of sureties. A devastavit is a mismanagement and waste by the personal representative of the estate and the proceeds arising therefrom entrusted to executor, administrator, guardian, etc., by which mitted to jail for contempt of evidence no order of commitment court, in failing to pay over a sum was authorized. of money ordered to be paid by the 51 — Blake v. People, 161 111. 74. county court. There was no evi- 52 — Walker v. Chovin, 16 111. dence at the hearing of the peti- 489; Heckenkemper v. Dingwehrs^ tion of any demand upon the de- 32 111. 538; Blake v. People, 161 fendant for the money due the peti- III. 74. tioner under the order as required 53 — See section 115, chapter 3, by section 115, chapter 3, "Admin- "Administration of Estates." Ante istration of Estates," and it was 594, statute set forth at large; held that because of such lack of McDonald v. Peopis, 222 111. 325. 506 THE LAW OF ESTATES. a loss occurs to the estate they represent. It will take place, when a direct abuse of the estate results from the action of such representative as, where he sells, embezzles and converts to his own use the estate entrusted to him ; or by mal-administration, in the payment of claims which are not owing, or by failing to pay others which should be paid, or paying claims out of the order or class in which they should be paid; or by paying lega- cies before all the debts have been satisfied; or by the neglect of the representative to sell goods in a reasonable time, if per- ishable, before wasted.-^'' Where an administrator, on the sale of property belonging to the estate, received the notes of the purchasers with security, and it resulted that the principals and sureties were insolvent; held, this will show prima facie, that the administrator had neglected his duty, and was gTiilty of a devastavit.^^ The unauthorized loaning of estate money by the executor is a devastavit.^^ Acts of negligence in respect of the control or disposition of the estate, whereby the rights of cred- itors or legatees, or parties entitled in distribution, are defeated, amount to a devastavit.^' Before the enactment of the legisla- ture of this State, providing for the bringing of suits on bonds of any public officer, and any and all their sureties, or against one or more of them jointly or severally, and the extending the enactments to executors, administrators, etc., it was necessary to prove a devastavit in order to recover. But ever since the statute went into effect, it is only necessary by pleadings in suit on bond, to recite and aver with sufficient certainty the breach of the bond and the matter complained of for which the sure- ties are liable.^^ The statute enters into and forms a part of an official bond.^^ And where the bond is conditional for the faith- ful performance of the duties of the office, the sureties are liable 54 — Bouvier Law Dictionary, 57 — In re Corrington Estate, 124 "Devastavit." 111. 363; Dusing v. Nelson, 7 Colo. 55— Curry v. People, 54 111. 263. 184; Howe v. People, 7 Colo. Ct. 56 — Johnson v. Maples, 49 111. of App. 535. 101; Graffenreid v. Kundert, 34 111. 58— Tupker v. People, 87 111. 76. App. 483. 59 — In re Estate of Ramsey v. People, 197 111. 586. SETTLEMENT OF EXECUTORS, ETC. 5Q7 for all duties imposed upon the principal, which come within the scope of his office ; whether required by laws enacted before or after the execution of the bond.^o g^^ while the general and well settled rule is to the effect, that the final account and report of an executor or administrator presented to the court of probate, and by it heard and approved is conclusive by the adjudication in that proceeding, it is also well settled, that judg- ment orders of that character arc not to be extended by mere intendment, to matters not necessarily involved in the determi- nation.6' Until a final settlement, if it appears there be omis- sions or mistaJves in the reports theretofore made, the probate court may correct such mistakes, as may also any court to which an appeal be taken.62 And so it is held a report of the executor thus presented, upon which there has been no adjudication by the court of probate, cannot be considered conclusive on the sureties.^^ 599. Order for payment of legacies. "Whenever it shall appear that there are sufficient assets to satisfy all demands against the estate, the court shall order the payment of all lega- cies mentioned in the will of the testator, the specific legacies being the first to be satisfied."''* 600. Bond from distributees to refund. "Executors and administrators shall not be compelled to pay legatees or dis- tributees until bond and security is given by such legatees or 60 — Frendenstein v. McNier, 81 408-409. See sections 1, 13, chap- Ill., 208; Ramsey v. People, 197 111. ter 103, "Official Bonds." Starr & 586; Longan v. Taylor, 130 111. Curtis Annotated Statutes, Vol. 2, 412; Mecham's Public Offices and pp. 2831 to 2835, and cases cited; Officers, sections 295, 296. Kurd's R. S. of 111., 1905, pp. 1417, 61 — Jessup V. Jessup, 102 111. 1419. 480; People v. Hoffman, 182 111. 64— R. S. 1845, p. 563, sec. 127, 408. Section 116, chapter 3, "Adminis- 62 — Bruce v. Doolittle, 81 111. tration of Estates." Starr & Cur- 103; Bennett v. Hanifin, 87 111. tis Annotated Statutes of Illinois, 31. Vcl. 1, pp. 341, 342, and cases cited 63 — People v. Hoffman, 182 111. under section of statute; Hurd's R. S. of 111., 1905, p. 124. 508 THE LAW OF ESTATES. distributees to refund the due proportion of an}- debt which may afterwards appear against the estate, and the costs attending the recovery thereof; such bond shall be made payable to such ex- ecutor or administrator, and shall be for his indemnity and filed in court. "^^ A creditor who has recovered a judgment on his claim against an estate in the county court, is not a "distributee" within the meaning of sections 116 and 117 of the Administration Act. These sections must be construed together with section 1, Chapter 39, entitled "Descent" as the several sections are in pari materia.^^ "Distributee." Section 117 is mandatory.^'^ Where a legatee has accepted from the executor a certificate of deposit belonging to the assets of the estate, and paid a balance thereon, and the bank upon which certificate is drawn fails before the maturity of the certificate, he cannot sustain a claim against the estate on a guarantee by the ex- ecutor.^8 And it appears to be held, that where a claim against an estate is pending for adjudication, it is improper to order money paid out to the legatee.^^ As the recent statute fixes the time for exhibiting claims against an estate at one year from the date of issuing letters testamentary or of administration, it would seem a proper construction of section 117 is, to apply the rule or doctrine, that the statute requiring a refunding bond from a distributee or legatee, applies solely to a case, where the statutory period for exhibiting claims has not run. That after such time no bond can be exacted. The intention of the statute is to indemnify and keep harmless the administrator or executor against claims properly chargeable to heirs, devisees or legatees 65— R. S, 1845, p. 563, sec. 129. 559; People v. Admire, 39 111. 251; Section 117, chapter 3, "Adminis- Windom v. Becker, 52 111. 342; tration of Estates." Starr & Cur- Bouvier's Law Dictionary, "Dis- tis Annotated Statutes of Illinois, tributee." with Jones & Addington's Supple- 67— Graffenreid v. Kundert, 34 ments thereto. Vol. 1, p. 342, and 111. App. 483. cases cited; Vol. 5, p. 20, and cases 68— Graffenreid v. Kundert, 34 cited; Kurd's R. S. of 111., 1905, p. 111. App. 483. 124. 69— Sherman v. Saylor, 36 IlL 66— Wolf V. Griffin, 13 111. App. App. 356. SETTLEMENT OF EXECUTORS, ETC. 509 to whom partial distribution may have been madeJ'' If an ad- ministrator becomes an executor or distributee, he is not re- quired to execute a refunding bond.'^^ 601. Refunding by distributees. "When, at any time after the payment of legacies or distributive shares, it shall be neces- sary that the same or any part be refunded for the payment of debts, the county court, on application made, shall apportion the same among the several legatees or distributees according to the amount received by them, except the specific legacies, which shall not be required to be refunded, unless the residue is in- sufficient to satisfy such debts; and if any distributee or lega- tee refuses to refund according to the order of the court, within sixty days thereafter, and upon demand made, such refusal shall be deemed a breach of his bond given to the executor or admin- istrator aforesaid, and an action may be instituted thereon for the use of the party entitled thereto; and in all cases where there is no bond, an action of debt may be maintained against such distributee or legatee, and the order of the court shall be evidence of the amount due."^^ Where an administrator, after the settlement of an estate and the payment of the balance in his hands to the heirs, is compelled to pay a new claim unknown to him within the two years after the grant of his letters, he or his executors may maintain a bill in equity against such heirs, to reimburse him or his estate for the sum so paid, although no refunding bond was taken. And in that case a decree against heirs requiring each to pay pro rata is proper. '^^ The liability of heirs for a debt of their ancestor, both in law and in equity, is to the extent of the full amount which came to them by de- 70 — Klicka v. Klicka, 105 111. tis Annotated Statutes of Illinois, App. 372; People v. Admire, 39 III. with Jones & Addington's Supple- 251. ments thereto. Vol. 1, pp. 242, 243, 71 — Weir v. People, 78 111. 192. and cases cited; Vol. 4, p. 44, and 72— R. S. 1845, p. 563, sec. 130. cases cited; Kurd's R. S. of 111., Section 118, chapter 3, "Adminis- 1905, pp. 124, 125. tration of Estates." Starr & Cur- 73— Outright v. Stanford, 81 III. 240. 510 THE LAW OF ESTATES. scent.'^* But it is held, where an executor without an order of court, paid a claimant more than he was entitled to receive, no action on behalf of the estate can be maintained to recover the excess so paid."^ The legatee or distributee can only be re- quired to refund a due proportion of any debt which may af- terwards appear against the estate when payment is demanded before the period for exhibiting claims has expired. ''^^ But if a judgment be held by an estate against an heir, his distributive share may be by proper order of the court applied upon such judgment,'^' An executor voluntarily paid over to one of the legatees named in the will, an amount supposed to be equal, or nearly so, to the interest of the legatee. It was subsequently, and after a lapse of ten years, alleged by the executor that the legatee had been overpaid, and upon a request and a refusal to refund, the executor commenced a suit to recover back the alleged excess: Held, that if the executor was entitled to re- cover at all, he was, notwithstanding, barred by the statute of limitations, as the statute begins to run when a cause of action accrues. In a case where some act is to be done, or condition precedent to be performed by a party to entitle him to his right to sue, and no definite time is fixed at which the act is to be done or condition performed, he must exercise reasonable dili- gence to do the one or perform the other, or he will be barred by the statute of limitations ; otherwise it would be in his power to defeat the law by his own negligence and wrong. ''^ In bills for accounting equity applies the same period of limitation pre- 74— Ryan v. Jones' Exr's, 15 111. son, 3 Gilm. (111.) 597. See sec- 1; Vanmeter Heirs V. Love's Heirs, tions 1, 2, 3, chapter S3, entitled 33 111. 260. "Limitations," Starr & Curtis 75 — Beaird v. "Wolf, 23 111. App. Annotated Statutes of Illinois, with 436. Jones & Addington's Supplements 76— Graffenreid v. Kundert, 34 thereto. Vol. 2, pp. 2599 to 2604, 111. App. 483. and cases cited under sections of 77— Egan v. Clark, 87 111. App. statute; Vol. 4, pp. 801 to 805, and 248. cases cited; Vol. 5, pp. 366, 367, 78 — Shelburne, Exr., v. Robin- and cases cited; Kurd's R. S. of 111., 1905, p. 1331. SETTLEMENT OF EXECUTORS, ETC. 511 scribed by the statute for barring actions of account as courts of common lawJ^ 602. Suits between associate representatives. ' ' Where there are two or more executors or administratoi-s of an estate, and any one of them takes all or a greater part of such estate and refuses to pay the debts of the decedent, or refuses to account with the other executor or administrator, in such case the ex- ecutor or administrator so aggrieved may have his action of account or suit in equity against such delinquent executor or administrator, and recover such proportionate share of said estate as shall belong to him; and every executor, being a resid- uary legatee, may have an action of account or suit in equity against his co-executor or co-executors, and recover his part of the estate in his or their hands. Any other legatee may have the like remedy against the executors: Provided, that before any action shall be commenced for legacies as aforesaid, the court shall order them to be paid. ' '^^ This section of the statute was formerly 131, section of the statute of Wills, re-enacted and placed under Administration Act without material change.^^ The case cited was a bill in chancery and the section in question was construed. On page 430: "In the preceding part of the section, two modes are prescribed for enforcing the payment of the legacies, one by action of account, and the other by suit in equity; and the proviso declares that before any action shall be commenced for legacies as aforesaid, an order shall be made by the probate court, etc. This clearly applies only to cases where the action of account shall be commenced, for the term action is never properly applied to a suit in equity, nor is suit a proper designation for an action of account. The proviso, 79 — Richardson v. Gregory, 126 Section 119, chapter 3, Adminis- 111. 166; Sherman v. Sherman, 36 tration of Estates." Starr & Curtis 111. App. 482; Higgins v. Spring, 36 Annotated Statutes of Illinois, Vol. 111. App. 310; Holmes v. Burwell, 1, p. 343, and cases cited; Kurd's 30 111. App. 445. R. S. of 111., 1905, p. 125. 80— R. S. 1845, p. 563, sec, 131. 81— Mahar v. O'Hara, 4 Gilm. (111.) 425. 512 THE LAW OF ESTATES. therefore, does not apply to a suit in equity to enforce the pay- ment of a legacy (Page 429) : The jurisdiction of courts of equity in cases of legacies, is expressly confirmed by this statute ; its general powers and jurisdiction in cases of legacies has been firmly established.^ ^ i^ equity, executors and administrators are trustees, and so also is a devisee who takes a devise, charge- able with legacies or debts. No better illustration could be de- sired, than the case before us. Here the testator devised an es- tate to his son, whom also he made his executor, and in considera- tion of the devise, he imposed upon his son the burthen of sup- porting the widow of the testator in his family, so long as they could agree, or she should choose to reside there, and when she should choose to live by herself, he should build for her a house, and furnish her annually with a specified quantity of corn, wheat and pork. Now, in equity he is considered a trustee for the purpose of executing these provisions in favor of the widow, and by accepting the estate he assumed the trust, and the estate thus devised is not only chargeable in equity with the trust, but by accepting the devise he became personally responsible for the payment of the legacy, according to the provisions of the will. "^^ The demand required to be made by this statute is not necessary or required where the a/iministrator dies be- fore demand is made. The statute has reference to cases where the administrator is in being, and upon whom a demand can be made. The demand required to be made is a matter of form intended to protect parties from needless costs; it was not de- signed to be used by the securities on an administrator's bond as a shield from liability, after a demand had become impos- sible.*^ Under this section of the statute, authority of an ad- ministrator de bonis non to call upon a former administrator, whose letters have been revoked, to account fully for his ad- ministration of the estate, is clear and unmistakable.^-'^ But 82—1 story's Eq. Jiir.. chapt. 10. 85— Duffin v. Abbott, 48 111. 17; 83— Mahar v. O'Hara, 4 Gilm. Ruffin v. Farmer, 72 111. 615; (111.), p. 429. Dodge v. Cole, 97 111. 351; Golden 84— People v. Admire, 39 111. 251. v. Bressler, 105 111. 419-432. SETTLEMENT OP EXECUTORS, ETC. 513 the courts make a distinction between an administrator de bonis non appointed on the death of an administrator, and one ap- pointed on the revocation of letters. In the one case, that of death, the representatives of the deceased administrator, can be called to account only by the heirs and distributees. In the other case, the statute expressly authorizes the proceedings.^^ It is not within the province of one of several executors to call his co-executors to account for their action in a court of equity. If either of the executors does wrong he, alone, is responsible, the other cannot be injured thereby .^^ But the act of one of several executors or administrators, while he remains in office, is the act of all.^^ 86— Duffin V. Abbott, 48 111. 17; 340; Huster v. Johnson, 84 111. 61; Marsh v. People, 15 111. 286; Ruffin People v. Atkins, 7 111. App. 105. V, Farmer, 72 111. 615; Hanifin v. 88— Dwight v. Newell, 15 111. Needles, 108 111. 407. 333; Marsh v. People, 15 111. 286. 87— Grain v. Kennedy, 85 111. 33 CHAPTER XXXI MORTGAGING AND LEASING REAL ESTATE Sec. 603. Mortgaging and leasing of real estate by executors, when made, — term. Sec. C04. Foreclosure of such mort- gage. 605. No strict foreclosure. Sec. 603. Mortgaging and leasing real estate by executors — when made — term. ''Real estate may be mortgaged in fee or for a term of years, or leased by executors: Provided, thai the term of such lease, or the time of the maturity of the indebted- ness secured by such mortgage, shall not be extended beyond the time when the heirs entitled to such estate shall attain the age of twenty-one years, if a male, or eighteen years, if a fe- male: And, provided, also, that before any mortgage or lease shall be made, the executors shall petition the county court for an order authorizing such mortgage or lease to be made, and which the court may grant, if the interests of the estate may require it: Provided, further, that the executor making applica- tion as aforesaid, upon obtaining such order, shall enter into bond, with good security, faithfully to apply the moneys to be raised upon such mortgage or lease, to the payment of the debts of the testator; and all money so raised shall be assets in the hands of such executor for the payment of debts, and shall be subject to the order of the court in the same manner as other assets."! Under this statute an administrator has no power to give a mortgage, and if he does, such act is void even if the heirs or the estate have the benefit of the money raised by such • 1 — R. S. 1845, p. 564, sections tion of Estates." Starr & Curtis 134, 135, rewritten and amended Annotated Statutes of Illinois, by law of 1869, p. 372, sec. 1. Sec- Vol. 1, p. 344, and cases cited; tion 120, chapter 3, "Administra- Kurd's R. S. of 111., 1905, p. 125. 514 MORTGAGING AND LEASING REAL ESTATE. 515 mortgage.2 Where a foreclosure sale under a trust deed con- taining a power of sale in the trustee was given by adminis- trators it was held: The administrators of deceased, had no power to mortgage the land ; and therefore no title passed under the sale made by the trustee of such mortgage.^ But where the will expresses or tends to show, it was the intention and expec- tation of the testator, that his executors would keep his estate intact, so far as they were able; and generally manage it in such a way to make it as productive as possible, and to this end, the executors were given the power to sell and convey such parts of the estate, as they, in their discretion, deemed neces- sary to accomplish the purpose in question, it was held: This grant of power under the circumstances, included the power to mortgage, when the mode of raising money to answer the object of the will, would, in the judgment of the executors, be to the best interest of the estate.'* The language of a certain will was : "I desire that my executor lease the farm for the support of the family during minority.*' The will contained no words "of grant, and there was nothing to show an intention to confer any estate upon the executors who made the lease under which an action for waste against the tenant was brought. Held: The 2 — Mei ritt v. Simpson, 41 111. but had no power to encumber the 391; Wetherell v. Harris, 67 Ind. real estate as was done by mort- 452; Smith v. Hutchinson, 108 111. gage or deed of trust for money 668. borrowed. And it was held, under 3 — Smith V. Hutchinson, 108 111. the facts shown where an adminis- 668. trator succeeded the executor, that 4 — Starr v. Moulton, 97 111. 535; he had no power, under the stat- Butler V. Heustes, 68 111. 597; Pool ute, to give a mortgage upon the V. Potter, 63 111. 537. real estate of his intestate, and if In Smith v. Hutchinson, 108 111. he gives one, as was done in that 662, the proceeding was under the case, it will not bind the estate, "Burnt Records Act" to establish and a sale under such mortgage title; and in that proceeding it ap- will pass no title, and if the ad- peared the executor under the ministrator is a part owner in the will in question had power to lands he so mortgages, he will be lease or sell certain lands for the estopped to dispute the validity of purpose of making a division of the mortgage, so far as concerns the proceeds among the devisees, his own interest therein. 516 THE LAW OF ESTATES. executors had no estate in the premises, for in executing this lease the executors exhausted their power to lease; and the lease terminated at the same time the youngest heir would at- tain his majority. The action of trespass could only be main- tained by the heirs who held the fee and were entitled to the reversion, subject to be defeated by an executor's sale. But as the defendant had covenanted in the lease not to commit the waste complained of, he was liable to be sued on this covenant, and the executors had this remedy for such injury.^ So where a lease was executed by a guardian who was sued in an action of covenant based upon the words of the instrument, "devised and leased": It was held, that in such a lease there are no implied covenants; there being no express covenants contained in the lease, which simply purports to be, and is, but the mere execution of a power conferred by statute, and where no implied covenants arise upon which such officer or agent can be held liable.^ The statute of 1845 did not authorize the mortgaging of the fee but the statute of 1869 did. Both the statutes of 1845 and 1869, applied to guardians; but, in 1872 Chapter 64 entitled "Guardian and Ward" was passed, which separated the executor, administrator and guardian and as to each the proceeding to mortgage are distinctly separate.'^ The power to lease, sell or mortgage real estate of a decedent is strictly a statutory proceeding, and the executor or guardian exercising such power must proceed and act strictly under the statute. But when power is expressly conferred by will, or from the language of the will it may be implied, the executor may act without the statute.^ By analogy, it would seem; the executor to be right and safe in proceedings to mortgage or lease, should be required to make parties to such proceedings, the same per- sons who are necessary parties where real estate is sold to pay 5 — Page V. Davidson, 22 111. 117; "Guardian and Ward." Starr & Pool V. Potter, 63 III. 537. Curtis Annotated Statutes of Illi- G— Webster v. Conley, 46 111. 13. nois. Vol. 2, pp. 2086, 2087; Kurd's 7— See R. S. 1845, p. 564; Laws R. S. of 111., 1905, p. 1132. of 1869, p. 372; see also sections S— Fell v. Young, 63 111. 106. 23, 24, 25 and 26, chapter 64, MORTGAGING AND LEASING REAL ESTATE. 517 debts ; for the proceeds arising from such mortgage are counted as assets and the executor is required to apply the same in the payment of debts of the testator and give bond with security that he will so apply such proceeds. Another analogj^ lies in the established rules, that under a sale of real estate to pay debts caveat emptor applies; and the mortgage given by the guardian or executor carries no implied covenants, and in the absence of express covenants, the guardian or executor is not liable.^ 604. Foreclosure. "Foreclosures of such mortgages shall only be made by petition to the county court of the county in which the premises, or a major part thereof, are situated; and any sale made by virtue of any order or decree of foreclosure, may, at any time before confirmation, be set aside by the court for inadequacy of price or other good cause, and shall not be binding upon the executor until confirmed by the court. "i<* 605. No strict foreclosure. ' ' No decree of strict foreclosure shall be made upon any such mortgage, but redemption shall be allowed as is provided by law in cases of sales under execu- tions issued upon common law judgments. ' ' Under the chapters of this work, relating to Guardian and Ward, where a similar statute is in force, and where the foreclosure of mortgages given by a guardian have been made, it is held: The provisions of the statute were not intended to, and could not exclude the juris- diction of the United States courts in proceedings brought in such courts to foreclose a mortgage given by a guardian, where it appears the requisite citizenship and amount involved are suf- ficient to give such courts jurisdiction." 9— Webster v. Conley, 46 111, 13. 11— Section 122, chapter 3, "Ad- 10 — Laws of 1869, p. 372, sec. 23. ministration of Estates." Starr Section 121, chapter 3, "Adminis- & Curtis Annotated Statute of lUi- tration of Estates." Starr & Curtis nois. Vol. 1, p. 344; Kurd's R. S. Annotated Statutes of Illinois, Vol. of 111., 1905, p. 125; Davis v. James 1, p. 344; Kurd's R. S. of 111., 1905, 10, Biss. 51; United States Mort- p. 125. gage Co. v. Sperry, 138 U. S. 313. CHAPTER XXXII ACTIONS WHICH DO AND DO NOT SURVIVE Sec. 606. Actions which survive. 607. What actions survive. 608. The legal construction of con- tracts determines whether or not a right of action survives. Sec. 609. Implied legal duties imposed upon heirs, devisees or legal representatives of de- ceased in actions which survive. 610. Real estate contracts enforced after death or insanity. Sec, 606. Actions which survive. In most of the States, the statutes expressly provide for a case where the vendor dies be- fore completing the contract, and leaves heirs or devisees adult or infant; the legislation is of different types, in some States it deals entirely with the suit in equity for a specific performance ; in others it provides for a mere summary special proceeding, by which the contract may be enforced without a suit, as a step in the settlement of the deceased vendor's estate. In relation to contracts that are joint and several the executor or administra- tor is suable in a separate action, but cannot be joined with the survivor; for the reason, that one is to be charged in his own right, the other in the right of his testator or intestate. The judgment cannot be joint, because one is liable personally, the other in his representative capacity, to the extent of assets in his hands.^ Under the principles of the common law, where one joint obligor dies, all rights of action at law, against his estate, or his administrators, is gone; and it was only in equity that relief and satisfaction could be had out of his estate. Even then, relief would be refused, unless the intestate participated in the benefits of the consideration, or could be treated as a sev- 1— Balance v. Samuel, 3 Scam. (111.) 383. 518 ACTIONS WHICH DO AND DO NOT SURVIVE. 519 eral obligor.^ As to joint rights and obligations, and what deemed joint and several, we refer to statute cited.^ We also call attention in this connection to Chapter 28 consisting of one section, as follows: "That the common law of England, so far as the same is applicable and of a general nature, and all statutes or acts of the British parliament made in aid of, and to supply the defects of the common law, prior to the fourth year of James the First, excepting the second section of the sixth chapter of 43d Elizabeth, the eighth chapter of 13th Eliz- abeth, and ninth chapter of 37th Henry Eighth, and which are of a general nature and not local to that kingdom, shall be the rule of decision, and shall be considered as of full force until repealed by legislative authority."^ Thus in Illinois the com- mon law is in force, so far as it is applicable to our society and institutions, unless modified by statutory laws of this State.^ In the absence of evidence to the contrary, it will be presumed in 2— Powell Adm'r v. Kettelle, 1 Gil. (111.) 491. 3 — See sections 1, 2, 3, chapter 76, entitled "Joint Rights and Obli- gations" (1) Also section 10, chap- ter 122, entitled "Schools." Hurfl's R. S. of 111., pp. 1249, 1250; (2), p. 1788; Starr & Curtis Annotated Statutes of Illinois, Vol. 2, pp. 2319, 2321, and cases cited; Vol. 3, p. 3645. 4 — Starr & Curtis Annotated Statutes of Illinois, with Jones & Addington's Supplements thereto. Vol. 1, p. 901, and cases cited; Vol. 4, 246, and cases cited; Kurd's R. 5, of 111., 1905, p. 469. 5— Boyer v. Sweet, 3 Scam. (111.) 120; Lavalle v. Strobel. 89 111. 370; Hanchett v. Rice, 22 111. App. 442; Trust Co. v. Palmer, 171 111. 385; Kochersperger v. Drake, 167 111. 125; Schlee v. Guckenheimer, 179 111. 596. In this case it is said: The rule that courts will not take notice of the laws of a sister state in the absence of an averment and proof does not pre- vail as to the common law, which is presumed to exist in each State of the Union in the absence of con- trary proof. And so it is held in that case, that a contract made in a foreign State which is valid at common law will be presumed by the courts of Illinois to be valid in the State where made, in the ab- sence of contrary proof, and will be enforced by such courts unless contrary to our laws or public policy. So a contract of purchase giving a privilege of purchasing a certain additional quantity of bar- ley, at the same price if taken be- fore a certain day in the future is not void as an option contract, pro- hibited by the statutes of Illinois. Distinction made between case, and Schneider v. Turner, 130 111. 28, and Pope v. Hanke, 155 111. 617. 520 THE LAW OF ESTATES. the courts of this State that the common law prevails in other States formed from territoiy which once belonged to the colo- nies of England.^ In discussing the common law rights and lia- bilities in case of contracts where one party to such dies, it is said: "Text writers noting the decisions on this subject state the law to be, that when the contract with the deceased is of an executory nature, and the personal representative can fairly and sufficiently execute all that deceased could have done, he may do so, and enforce the contract. ' '^ Exceptional cases arise, when the contract is of a personal character, or requires, in its exe- cution, the exercise of peculiar skill or taste. But when the administrator undertakes to perform the contract of his intes- tate it is upon his personal responsibility, and if losses are sus- tained, he must bear them, and if profits are realized, they be- come assets in his hands for the benefit of the estate. Such were the liabilities the common law imposed upon the administrator assuming to execute the contract of the decedent.^ "All con- tracts made by the decedent may be performed by the executor or administrator, when so directed hy the County Court.' '^ But it is apprehended this statute does not change the common law on this subject, except in one particular. Without this enabling statute the executor or administrator could not bind the estate, nor relieve himself from personal responsibilitj', but under its provisions, when directed by the county court to per- form the contract, the estate may be charged with all losses that may be incurred, as well as receive all benefits of any profits that may be realized, and in that way the executor or adminis- trator may be relieved from all personal responsibility.^^ "It 6 — Schlee v. Guckenheimer, 179 8 — Rapp v. Phoenix Ins. Co., 113 111. 596. 111. 398. 7— Smith V. W. C. M. & Mfg. 9— Section 127, chapter 3, "Ad- Co., 83 111. 500; 1. Parsons on ministration of Estates." See stat- Contracts, 6th ed. p. 131, and see ute at large, ante 567. the following common law author- 10 — Smith v. W. C. M. & Mfg. ities sustaining the text writer: Co., 83 111. 500, 501. In this case Saboni V. Kirkman, 1 M. & W. 418; the rule is laid down, that ff a Yv'entworth v. Cook, 10 A. & E. 42. contract with a deceased party is ACTIONS WHICH DO AND DO NOT SURVIVE. 521 is a misapprehension of the law to suppose the death of one of the contracting parties put an end to the contract. For any breach after, as well as before, the death of such party, his estate would be liable to respond in damages. It is conceded, the county court could have directed the administratrix to carry out the contract made with decedent. The admission implies the continued existence of a valid contract, and for any breach thereafter, the administratrix might maintain an action. But, in our view of the law, the administratrix had that right inde- pendently of the statute, taking upon herself all risk incident to the further execution of the contract. "^^ "We quote exten- sively from this leading case because it has been followed con- stantly by the Illinois courts. 607. What actions survive. It has been seen the death of one of the contracting parties does not put an end to the con- tract.^ 2 So it often happens that the representatives of an estate, or the heirs or devisees of a deceased person, may in some manner be compelled to carry out or litigate under a con- tract of the deceased. An ante nuptial contract may be the basis of a claim against an estate or those interested, such as heirs or devisees.^^ Also actions and possible liabilities may arise out of commercial contracts.^* Contracts covering inven- tions may be specifically enforced.^ ^ "In addition to the ac- tions which survive by the common law, the following also survive: Actions of replevin, actions to recover damages for an injury to the person (except slander and libel), actions to recover damages for an injury to real or personal property, and for the detention or conversion of personal property, and ac- of an executory nature, and his 12 — Reeves v. Stipp, 91 111. 610. personal representative can fairly 13 — Dunlap v. Lamb, 182 111. and suflBciently execute all that the 325 ; Murdock v. Murdock, 219 111. deceased could have done, he may 23. do so, and enforce the contract, 14 — Mobile Fruit Co. v. J. H. the exceptions to the rule being Judy & Son, 91 111. App. 91. cited in the text. 15 — Bates v. Machine Co., 192 11— Smith V. W. C. M. & Mfg. 111. 138; Supply Co. v. Davis Mfg. Co., S3 111. 500, 501. Co., 77 Fed. Rep. 883. 522 THE LAW OF ESTATES. tions against officers for malfeasance or nonfeasance, of them- selves or their deputies, and all actions of fraud or deceit. "^^ Where the injury does not cause death, the statuton^ action sur- vives the defendant's death and is good against his administra- tor.i'^ A and B agents of an insurance company with C as surety gave a certain indemnity bond guaranteeing the honesty and fidelity of the bonden for certain funds. C the surety died, and after his death a clerk in the service of the bonden misap- propriated the funds in the hands of the bonden. In such ease under the conditions of the bond the estate of C the surety was held liable.i^ 608. The legal construction of contracts determine whether or not a right of action survives. Thus where notes were given by A to B to promote the object of the latter in purchasing a church bell ; A having died before the church bell was purchased, B the holder of the notes spent no money nor incurred no lia- bilities in connection with the project which caused him loss or 10 — Section 123, chapter 3, "Ad- ministration of Estates." Starr & Curtis Annotated Statutes of Illi- nois, Vol. 1, p. 344, and cases cited; Kurd's R. S. of 111., 1905, p. 125. See also sections 1 and 2, chapter 70, entitled "Injuries" Starr & Curtis Annotated Statutes of Illi- nois, with Jones & Addington's Supplements thereto. Vol. 2, pp. 2155, 2156, and cases cited; Vol. 4, general notes, p. 684, 690, and cases cited; Vol. 5, p. 312, and cases cited; Kurd's R. S. of 111., 1905, pp. 1152, 1153, Wehr v. Brooks, 21 111. App. 115 C. & E. I. R. R. Co. V. Connor, 19 111. App. 593. 17— -Wehr v. Brooks, 21 111. App. 115, and cases cited in the opinion. 18 — In re Estate of Rapp v. Phoenix Ins. Co., 113 111. 390. And see the following cases from this and other states supporting the opinion. Jordon v. Dobbins, 122 Mass. 168, goods sued for were sold after the guarantor's death, and not founded therefore upon any present consideration passing to the guarantor. Keld, such a guar- anty is revocable by the guarantor at any time before it is acted upon, death of the guarantor in that case operating to revoke the con- tract for sale of goods after death. See Brandt on Suretyship, sec. 113; Green v. Young, 8 Greenlf. 14; Moore v Wallace, 18 Ala. 458; Royal Ins. Co, v. Davies, 40 Iowa 469; Menard v. Scudder, 7 La. Ann. 385. And see distinction in principle applied as betWSen cases cited and Pratt v. Trustees, 93 111. 475; Jenderine v Rose, 36 Mich. 54; Karris v. Fawcett, 15 Law. Rep. Eq. C. 311. See also Chitty on Contracts 10th Am. ed. p. 101. ACTIONS WHICH DO AND DO NOT SURVIVE. 523 injury. The notes being without consideration in such case, could not be enforced and a right of action thereon it was held did not survive.^'* Collection of notes cannot be enforced as a promise to make a gift.^o Where the promise stands as a mere offer, and may, by necessary consequence, be revoked at any time before it is acted upon there is no right of action. It is the expending of money, etc., or incurring of legal liability, on the faith of the promise, which gives the right of action, and without this there is no right of action.21 Being but an offer, and susceptible of revocation at any time before being acted upon, it must follow that the death of the promisor, before the offer is acted upon, is a revocation of the offer.- 2 An action for a statutory penalty does not survive.^^ 609. Implied legal duties imposed upon heirs, devisees or legal representatives of deceased in actions which survive. Under the common law it was provided, that in all actions to be conunenced in any court of record, if plaintiff or defendant should happen to die after interlocutory and befoi'e final judg- ment, the action should not by reason thereof abate, if such ac- tion could be originally prosecuted or maintained by or against the executor's or the administrator's of the party dying; but the plaintiff' in such case, or, in the event of his death after such interlocutory judgment, his executors or administrators might have a scire facias against- the defendant, or, if he should die after such interlocutory judgment, then his executors or admin- istrators, to show cause why damages should not be assessed or recovered in such action.^* The statute of Illinois, entitled "Abatement" applies to law and chancery proceedings.^^ The 19 — Pratt Adm. v. Trustees Bap- 22 — Pratt Adm. v. Trustees Bap- tist Society, 93 111. 475. tist Society, 93 111. 475. 20— Pope V. Dodson, 58 111. 360; 23— Diversey v. Smith, 103 111. Blanchard v. Williams, 70 111. 652. 378. 21 — McClure v. Williams, 43 111. 24 — Life Association of Ameri- 356; Trustees v. Garvey, 53 111. ca v. Fassett, 102 111. 315, 326. 401 ; Baptist Educational Society v. 25 — Section 1, chapter 1, "Abate- Carter, 72 111. 247. ment." Starr & Curtis Annotated 524 THE LAW OF ESTATES. death of a plaintiff pending his suit must be taken advantage of by plea in abatement; otherwise, the judgment in his name will be binding.26 If the sole defendant die pending suit, and his administrator is not made a party to the suit, and judgment is taken the same will be unauthorized and void. And if the plaintiff does not within a reasonable time, take the proper steps to bring the legal representative of the deceased defendant into court, the court should, on its own motion, enter a judgment or order that the suit abate. The same rule applying to the death of a defendant, also applies to the dissolution of a cor- poration.27 ''Where there is but one plaintiff, petitioner or complainant in an action, proceeding or complaint, in law or equity, and he shall die before final judgment or decree, the action, proceeding or complaint, on that account shall not abate ; and if the cause of action survive to the heir, devisee, executor or administrator of such deceased, such heir, devisee, or legal representative may, by suggesting such death upon the record be substituted as plaintiff, petitioner or complainant to prosecute wsuch suit, etc." "Upon the death of a sole defendant, before final judgment or decree, a suit at law or equity will not abate on that account, if it might be originally prosecuted against the heir, devisee, executor or administrator of such defendant. But in such case the plaintiff, petitioner or complainant may sug- gest such death on the record, and may, by order of court, have summons against such person or legal representative, requiring such to appear and defend the action, proceeding or com- plaint. "^^ And where there are several plaintiffs, petitioners or Statutes of Illinois, Vol. 1, p. 247, 28 — Sections 10 and 11, chapter and cases cited under section of 1, "Abatement." Starr & Curtis statute; Kurd's R. S. of 111., 1905, Annotated Statutes of Illinois, Vol. p. 97. 1, pp. ^4, 255, and cases cited; 26— Stoetzell v. Fullerton, 44 111. Hurd's R. S. of 111. 1905, p. 98. See 108; Life Association of America also section 8, chapter 87, entitled V. Fasset, 102 111. 315, 328. "Mandamus." Starr & Curtis An- 27 — Life Association of America notated Statutes of Illinois, Vol. V. Fassett, 102 111. 315. 1, p. 2682; Hurd's R. S. of 111., 1905, p. 1351. ACTIONS WHICH DO AND DO NOT SURVIVE. 525 complainants or defendants in an action, proceeding or com- plaint, in law or equity, the cause of which survives, and any of them die before final judgment or decree, the action at law or equity does not abate on that account, but such death may be suggested on the record, and the cause proceed at the suit of the surviving plaintiffs, petitioners or complainants or against the surviving defendant or defendants, as if such persons had been original parties to the suit.^^ And in ease of the death of all of the plaintiffs or defendants, the cause may be prose- cuted or defended by or against the heir, devisee, executor or administrator to or against whom the case survives. 610. Real estate contracts enforced after death or insanity. Chapter 29 containing eight sections, provides for the enforce- ment of a contract in writing, to make a deed or title to land in this State, for a valuable consideration, where any person contracting shall have died, or become lunatic or insane, with- out having executed and delivered a deed of conveyance. In such case any court having chancery jurisdiction, in the county where the land, or some part thereof, may be situated, may make an order where the statutes have been followed in making par- ties to such cause all those whose rights are affected; and the evidence sustains the right of petitioners in such proceeding, upon the payment of full consideration of such contract, direct- ing the administrator or executor of a deceased person to such contract, or the conservator of a lunatic or insane person, to execute and deliver a deed to the party having an equitable right to the same, or his heirs, according to the true intent and mean- ing of such contract. Or the heirs at law of either party de- ceased, or guardians and conservators of habitual drunkards may sue and be sued under the act, and have the same rights and remedies as the representatives or the heirs of deceased par- ties to such contract. And all such deeds under the provisions of the act shall be good and valid in law. Under this statutory 29 — Sees. 11, 12, 13, chapter 1, notated Statutes of Illinois, Vol. "Abatement." Starr & Curtis An- 1, pp. 255, 256, 257. 526 THE LAW OF ESTATES. proceeding heirs of deceased contracting parties are very es- sential parties to such proceeding; for the order of conveyance can only be made where the proper parties are before the court. Minority of heirs is no excuse for not asserting their rights.^"^ The order for conveyance can only be had when the considera- tion of the contract is fully paid and discharged; and where consideration has not been paid, equity will entertain' a bill to compel payment and conveyance independently of this statutory 30 — See sections 1 to 8, chapter 29, "Contracts." Starr & Curtis Annotated Statutes of Illinois, with Jones & Addington's Supple- ments thereto, Vol. 1, p. 904, et seq., Vol. 4, p. 247 et seq., Vol. 5, p. 102, et. seq., and cases cited, in each volume under sections of statute and in general notes. See also the following cases: Walker V. Douglas, 70 111. 445, 448; Suth- erland V. Parkins, 75 111. 339; Greenbaum v. Austrian, 70 111. 591; Forman v. Stickney, 77 111. 575; Kurtz v. Hibner, 55 111. 514; Wood V. Thornley, 58 111. 468; King V. Gilson's Adm'x 32 111. 354; Rockwell v. Servant, 54 111, 251; Ante nuptial contract re- ceives liberal construction, Dun- lop V. Lamb, 182 111. 325; construc- tion given by parties to contract will often be followed by the court, IkTueller v. North Western Uni- versity, 195 111. 255; and to the same effect, De Clercq v. Barber Asphalt Paving Co., 167 111. 218; circumstances surrounding parties, when the contract is made and ex- ecuted, may aid, limit or enlarge, the ordinary meaning of terms em- ployed, and the court may adopt all such in its discretion in the construction of a contract. Mc- Coy V. Fahrney, 182 111. 65; what considered sufficient consideration, forbearance. McMicken v. Safford, 197 111. 546. Agreement to release right of inheritance, James v. Hanks, 202 111. 119. Compromise of a doubtful right, held to be in- adequate, Adams v. Crown Coal & Tow Co., 198 111. 450; Reeves Pul- ley Co. V. Jewell Belting Co., 102 111. App. 380; Douthart v. Congdon, 197 111. 355. Equity will not con- strue a contract, and assess dam- ages for a breach thereof, where the suit is brought to reform the contract, and where there is no charge of fraud or mistake, Clark V. Shirk, 121 Fed. Rep. 343. But an agreement of an expectant heir, which pertains to future contin- gent estate will be considered and enforced in equity. Gary v. New- ton, 201 111. 180; a gift is a vol- untary, gratuitous transfer of property by one to another, and will not discharge an existing le- gal liability. Martin v. Martin, 202 111. 388; Morey v. Wiley, 100 111. App. 78; Sheldon v. Dunbar, 200 111. 493. Intention must be as- certained when a contract is being construed, and the court will refer to the instrument as a whole, and not solely to certain provisions to get at the intention. Gibbs v. Bank, 198 111. 311. ACTIONS WHICH DO AND DO NOT SURVIVE. 527 proceedmg.31 The courts are frequently called upon to con- strue a contract where such appears to be void for want of mu- tuality ; or where a merger of an estate may take place at law or equity under some particular circumstances growinp- out of the contract in controversy between the parties to a particular pro- ceeding in law or equity. In the case of Fortkam v. Deters,^^ these very questions are raised and decided. In that case a con- tract for the sale of land, signed and sealed by the proposed vendors, recited, they have "sold" the land described to the proposed vendee; it being held, that such contract does not lack mutuality, even though not signed by the vendee, particularly where the latter accepts and adopts such contract, it will be re- garded as based upon sufficient consideration. In the same case the doctrine of merger is raised, and it is held, that a merger takes place when a legal and equitable estate coincide in the same person ; and when the merger takes place at law, the equit- able estate is immediately merged and annihilated. As to the rule in equity, when it takes place, depends upon the intention of the parties and the particular circumstances ; but equity will not prevent a merger where such prevention would give effect to a fraud or wrong. And so it is held applying these rules in that case, where one purchases property, with notice of a prior agreement by the vendors to convey to another person, the pur- chaser wiU be regarded as the trustee of the latter, and such may be decreed in a proper proceeding in chancery to convey the land in the same manner as his vendors. 31— Burger v. Potter, 32 111. 66; Warner v. Scott, 63 HI. 368; Kirk- Carpenter V. Mitchell, 54 111. 126; ham v. Boston, 67 111. 597. 32—206 HI. 159. CHAPTER XXXIII APPEALS AND WRITS OF ERROR Sec. 611. 612. 613. Appeals from the allowance or rejection of claims. Appeal to what courts, — bonds. Matters involved on appeal to circuit court. Sec. 614. Appeal by representative, his bond. 615. Appeal in proceedings for the sale of land to pay debts. 616. Appeals in such case since the creation of the Probate and Appellate Court. Sec. 611. Appeals from the allowance or rejection of claims. In the administration of estates, we have heretofore cited the statutes where appeals were provided for; but owing to ques- tions that might arise under the statute relation to "Wills," "Administration of Estates" and possibly the "Practice Act," in connection with the tendency of the legislature to extend and increase the jurisdiction of courts of probate, we deem it neces- sary to cover the subject of appeals, certiorari, and error. The statute relating to the "Administration of Estates" provides: "That in all cases of the allowance or rejection of claims by the county court, as provided in this Act, either party may take an appeal from the decision rendered to the circuit court of the same county, in the same manner appeals are now taken from justices of the peace to the circuit courts, by appellant giving good and sufficient bond, with security, to be approved by the county judge; and such appeals shall be tried de novo in the circuit court. "1 The act relating to justices of the peace, pro- vides, the party praying an appeal shall "within twenty days from the rendition of the judgment from which he desires to 1 — Section 68, chapter 3, "Ad- nois, Vol. 1, p. 300, and cases cited; ministration of Estates." Starr & Kurd's R. S. of 111., 1905, p. 116. Curtis AnnotatBd Statute of Illi- See also Grier v. Cable, 159 111. 35. 528 APPEALS AND WRITS OF ERROR. 529 take an appeal, enter into bond with security to be appfoved," etc.2 The bond given on appeal from the court of probate, must be approved by that court and filed in that court.^ And the writ of certiorari from the circuit court to the county court in a proper proceeding, will be issued to review judgment of the court of probate in probate matters.* But in the case of Blair V. Sennott,^^ it is said: "The single question upon the record is: If the probate court has jurisdiction, its judgment cannot be reviewed by certiorari, as the remedy for the correction of any error in the final order, if any was committed, is by appeal."^ Section 68 of the Administration Act, providing for appeals from orders of the county court, rejecting or allowing claims against estates to the circuit court, applies and refers to appeals only, and does not authorize the circuit court to issue a writ of cer- tiorari to the county court in such case.*^ 2 — Section 115, chapter 79, "Jus- tices, etc." Starr & Curtis Anno- tated Statutes of Illinois, with. Jones & Addington's Supplements thereto. Vol. 2, p. 2436, Vol. 4. p. 768, and authorities cited under statute; Hurd's R. S. of 111., 1905, p. 115, section 1; article IX. p. 1286, Davis v. Jones, 82 111. 107; Pfirshing v. Falsh, 87 111. 260. 3— Witter v. Estate of Witter, 65 111. App. 336; Sullivan v. Breen, 93 111. App. 527; Blood v. Harvey, 81 111. App. 190. 4— Johnson v. Gillett, 52 111. 358; Dye V. Noel, 85 111. 290; see also p. 87, section 32, chapter 37, en- titled Courts. Starr & Curtis An- notated Statutes of Illinois, with Jones & Addington's Supplements thereto, Vol. 5, p. 149; Hurd's R. S. of 111., 1905, par. 67, sec. 32, p. 608. See section 24, chapter 1, "Abatement." Starr & Curtis, etc.. Vol. 1, p. 259; Hurd's R. S. of 111., 1905, p. 100. 4a— 35 111. App. 368. 84 5 — Hyslop v. Finch, 99 111. 171. In this case it is held: There are two classes of cases in which a common law certiorari will lie: first, where it is shown that the inferior court or jurisdiction of such has been exceeded; second, where it is shown that the inferior court or jurisdiction thereof, has proceeded illegally, and from which act no appeal or writ of error will lie. The common law writ of certiorari simply brings before the court, for inspection, the record of the inferior tribunal or body, and its judgment affects the validity of the record alone, — that is, determines that it is valid or invalid. See also cases cited on top of page 178, touching the matter. 6— Schaeffer v. Burnett, 221 111. 315. Under the facts found in that case and revived by the court, it was held the issuing of the writ of certiorari to the county court was not authorized. 530 THE LAW OF ESTATES. 612. Appeal — to what courts — bonds. "Appeals shall be allowed from all judgments, orders and decrees of the county court, in all matters arising under this act, to the circuit court, in favor of any person who may consider himself aggrieved by any judgment, order or decree of such court, and from the circuit court to the supreme court, as in other cases, and bonds with security to be fixed by the county or circuit court, as the case may be."'' This section should be considered in connection with section 68 of the Administration Act, for it may reason- ably be inferred that this section was intended to cover all cases under that act, as it specially provides for appeals from "all judgments, orders or decrees of the county court in all matters arising under this act. "^ The heir may appear and defend claims against an estate in the name of the adminis- trator.^ And the right to appear and defend in the same man- ner on appeal to the circuit court cannot be denied. As under section 124 providing "any person who may consider himself aggrieved by any judgment, order or decree" of the county court may take an appeal, need not necessarily be a party to the record.i^ A claimant against an estate, if he has a right to appeal in name and in behalf of the administrator, must as- sign errors in his own name.^^ The heir appealing, by virtue of section 124, must file bond executed by himself and security.' ^ The appeal can only be taken from final orders, judgments and decrees.^ ^ The practice on appeal from court of probate to 7 — Section 124, chapter 3, "Ad- ante, Collins v. Kinnare, 89 111. ministration of Estates." Starr & App. 239; Weer v. Grand, 88 111. Curtis Annotated Statutes of Illi- 490. nois, with Jones & Addington's 11 — Dearth v. Bute, 71 111. App. Supplements thereto, Vol. 1, p. 490. 345; Vol. 4, p. 45; Vol. 5, p. 20, 12— Blood v. Harvey, 81 111. App. and cases cited under section of 190; statute reference, see ante statute; Hurd's R. S. of 111., 1905. note 7. p. 125. 13 — Stevens v. Farrell, 71 111. S—Ante 611, for statute quoted App. 467; Lane v. Thorn, 103 111. at large. App. 218; Ford v. Bank, 201 111. 9— Motsinger v. Wolf, 16 111. 71. 122; Grier v. Cable, 159 111. 34. 10 — As to statute see note 7, APPEALS AND WRITS OF ERROR. 531 circuit court being identical with that prevailing on appeals from justices of the peace.^^ 613. Matters involved on appeal to circuit court. Such necessarily involve claims appealed from and any matter aris- ing upon final order excepting proceedings for the sale of land to pay debts. Thus, generally, from order approving apprais- er's report, making allowance to child of decedent.^^ But ap- peal does not lie from order appointing appraisers, the same not being considered final.^^ Appeal may be taken to the circuit court from order of final settlement.^ ^ But such appeal does not prevent county court from ordering distribution.^^ Appeal may be taken from certain items of administrator's or executor's account.^ ^ And from an order entered by probate court upon citation against representatives of estate. 2« And from final order in a proceeding to discover assets under sections 81 and 82 of the Administration Act.^i And in such proceeding, the su- preme court on appeal from the appellate court will review the facts, as the proceeding is in the nature of proceedings in chan- cery. 614. Appeal by representative — his bond. "In all cases when an executor or administrator shall take an appeal from the judgment, decree or order of any court or justice of the peace to the county, circuit or supreme court, or when he may prosecute writs of error or certiorari, the appeal certiorari or supersedeas bond shall be conditioned to pay the judgment or decree, with costs, in due course of administration; in all other 14 — Baker v. Thompson, 98 111, 196; Curtis v. Brooks, 71 III. 125; App. 190. Millard v. Harris, 119 111. 185; 15 — Wood V. Johnson, 13 111. Peterman v. U. S. Rubber Co., 221 App. 548. 111. 581. 16 — Maynard v. Maynard, 96 111. 20 — Rockey v. Downey, 98 111. App. 479. App. 321, 17 — Reward v. Slagle, 52 111. 21 — For statute cited see ante 33G; Richardson v. Emberson, 96 511, 512, People v. Benson, 99 111. 111. App. 405. App. 326; Martin v. Martin, 68 111. 18— Curtis V. Brooks, 71 111, 125. App. 173; Martin v. Martin, 170 19— Morgan v. Morgan, 83 111. 111. 23. 532 THE LAW OF ESTATES. respects such bond shall be in the form prescribed by law in other cases. ' '22 In suing out a writ of error to reverse a decree, the administrator executed a supersedeas bond conditioned that in case of affirmance the decree should be paid "in due course of administration." This was held sufficient. The administra- tor was not bound to assume an absolute personal liability for the payment of the decree against his estate. ^3 And it was held an appeal bond, by an executor, conditioned that he shall pay the debt in due course of administration, was good. 2* Where an administrator appealed, and the condition of the bond recites that he is administrator, and at the end of his signature to the bond he adds "Adm'r," the court will not hold this is an indi- vidual bond of the administrator.^^ Where a party dies pend- ing his appeal from a judgment against him, and his administra- tor is substituted, an affirmance of a judgment against the de- ceased party's administrator, requires that such be paid as other established claims in the court of probate are paid, and that is in due course of administration. And should the administrator be discharged before paying such judgment it is held to be invalid.^* 615. Appeal in proceedings for the sale of land to pay debts. The right to appeal is a statutory right which did not exist un- der the common law. The writ of error was the writ of right under the common law ; and it also, as to its use, is now regulated by statute in most of the States. It is so regulated in Illinois.^^ The statute of 1845, relating to proceedings to sell land to pay debts in due course of administration, provided for an appeal 22— Section 125, chapter 3, "Ad- 25— Beardsley v. Hill, 61 111. ministration of Estates." Starr & 354. Curtis Annotated Statutes of Illi- 26— Green v. Taney, 16 Colo. 3r98. nois. Vol. 1, p. 347, ajid cases 27— Langworthy v. Baker, 23 111. cited; Kurd's R. S. of 111., 1905, p. 432. See section 123, of the 126. County Court Act, chapter 37, en- 23— Smith v. Dennison, 94 111. titled "Courts," providing for ap- 5g2. peals and writs of error. Hurd's 24— Mason v. Johnson, 24 HI. R. S. of 111., 1905, p. 625. 160. APPEALS AND WRITS OF ERROR. 533 to the Supreme Court.^s And where there is no statute directing an appeal to the Circuit Court, and for that matter since the es- tablishment of the Appellate Court, the rule of practice seems to be settled, that the common law writ of error lies to the Su- preme Court.29 To illustrate : In Haines v. The Peaple^^ it ap- peared the statute gave no right of appeal to the Circuit Court, in a proceeding to commit for contempt in failing to settle ac- counts under the order of the County Court, and it was held, a writ of error lies to the Supreme Court. In a bastardy case there being no statute permitting appeal from the County Court to the Circuit Court, the appeal goes direct to the Appellate Court. In such case if the appeal were to the Circuit Court the contesting parties would have the benefit of two jury trials.^i And so a writ of error will not lie where the statute provides for an appeal to the Circuit Court.32 In Kingsbury v. Sperry, three writs of error from the county court were brought to review the proceedings of that court ; the statute then in force was the same as the present, which pro- vided, that guardians may mortgage the real estate of their wards, by leave of the county court, expressed in an order to be made for that purpose, which mortgage so given can only be foreclosed in the county court. The statute then as now allow- ing an appeal from such order or judgment of the county court to the circuit court upon giving bond and security as directed by the court. Held, no writ of error would lie in such case, the remedy being by appeal.*^ 28 — Same statute citation as in Goe, 54 111. 285; Frans v. People, note 27. 59 III. 427. 29— Fitzpatrick v. Joliet, 87 111. 33—119 111. p. 282, and cases 60. cited, page 283. In Kingsbury v. 30 — 97 111. 262. Sperry, it was held the forclosure 31 — Lee v. People, 140 111. 536. of a mortgage, or the giving leave 32 — Ennis v. Ennis, 103 111. 96; by the county court to a guardian Frank v. Moses, 118 111. 435; Hob- to mortgage, does not involve a son V. Paine, 40 111. 25; Holden v. freehold, within the meaning of Herkimer, 53 111. 258; Horner v. the statute relating to appeals and writs of error. 534 THE LAW OF ESTATES. 616. Appeals in such case since the creation of probate and appellate courts. When the legislature of the State of Illinois created Probate and Appellate courts, the practice relating to appeals and writs of error to and from said courts was much confused; particularly was this true, when the relation of such new courts were considered in their new relation to the old and long established courts. The Appellate and Probate court acts went into effect July 1, 1877, and it was really as late as March 13, 1896, when the case of Lynn v. Lynn^^ definitely settled the conflict existing under the several sections of the statute relating to appeals in proceedings to sell lands to pay debts. Soon after the establishment of these new courts several cases in their order were decided and now and then one of the statutes in regard to appeals were construed and given effect, but no decided review of the various statutes in apparent conflict was made until the decision noted. Thus, in Union Trust Co. v. Trumble,^^ it was held : That section 8 of the Appellate Court Act repealed, by im- plication, section 122 of the County Court Act in so far as it con- flicted with it. The question arose, whether or not an appeal was to the circuit court in a bastardy case or direct to the Appel- late court from a judgment of the county court.^^ And it was held that section 8 of the Appellate Court Act "operates as an amendment of section 88 of the Practice Act, and should be read and construed as a part thereof. And when it is so read, it is plain the effect is to give the appeal in the bastardy case direct to the Appellate court, for although a bastardy proceeding is not a suit at common law, it is clearly a proceeding at law."^^ In the case, Lynn v. Lynn, it is said : * ' So far we have spoken in re- gard to appeals from and writs of error to county courts, while this case comes from the Probate court of Cook county. Section 8 of the Probate Court Act^^ provides that the practice in the probate court shall be the same as now provided or which may 34—160 111. 307. 38 — See section 8 Probate Court 35 — 137 111. 146. Act given at large. Sec. 9, chapter 36— Lee v. People, 140 111. 536. 1, of this work. Laws of 1877, p. 37— Lynn v. Lynn, 160 III. 307. SI. APPEALS AND WRITS OF ERROR. 535 hereafter be provided for the probate practice in the county court; and all laws now in force or which may hereafter be enacted, concerning the administration of estates, shall govern and be applicable to the practice of the probate court. Under this section, whatever practice is provided by law for the county court applies also to the probate court,^" as used in the statute, includes the mode or manner of removing cases from the county or probate court to the Appellate or Supreme Court by appeal or writ of error. ' ' Therefore it was settled beyond further con- troversy, an appeal lies directly to the Supreme court from a decree of the probate court in a proceeding to sell lands of a decedent for the payment of debts and where a freehold is in- volved, the provision of the act in relation to the administration of estates, and of the County Court Act for appeal to the circuit court, are pro taiito repealed by the Practice Act and Appellate Court Act."*^ It is well settled that in cases involving the valid- ity of a statute or the construction of the constitution the appeal or writ of error lies direct to the Supreme Court.**^ 39 — Fleishmaa v. Walker, 91 Court Act, chapter 37. entitled III. 318. "Courts" Appellate Court Act same 40— Lynn v. Lynn, 160 111. 307; chapter section 8; Hurd's R. S. of see also Randolph v. People, 130 111., 1905, pp. 601, 625. 111. 533; Grier v. Cable, 159 111. 29; 41— Section 89, Practice Act, see sections 88, Practice Act, chap- Hurd's R. S. of 111., 1905, p. 1514; ter 110. Hurd's R. S. of 111., 1905, County of Cook v. Industrial p. 1543; sections 122, 123, County School for Girls, 125 HI. 540. CHAPTER XXXIV ASSIGNMENT! OF DOWER AND HOMESTEAD— PROCEDURE Sec. 617. 618. 619. 620. 621. 622. 623. 624. Heir or next freeholder to as- sign dower. If assignment not made with- in month, suit. Necessary parties, include oc- cupants, interested parties, unknown owners, unknown interests. Summons and notice by pub- lication the same as in suits in chancery. Pleadings and requirements, hearing, decree. Division by commissioners. Homestead, dwelling house, assignment of not to affect estate of homestead; waiver. Report of commissioners; ap- Sec. proval by court, effect, pos- session. 625. When land cannot be divided; proceedings. 626. Sale under decree; lien pre- served. 627. Damages from time of de- mand. 628. Power of court 629. Heirs, persons interested may petition to have dower as- signed. 630. Administrator's or Guardian's sale — assignment in of dower or homestead. 631. Waste by person endowed. 632. Representative conveying land by order of court does not lose dower. Sec. 617. Heir or next freeholder to assign dower. "It shall be the duty of the heir at law, or other person having the next estate of inheritance or freehold in any lands or estate of which any person is entitled to dower, to lay off and assign such dower as soon as practicable after the death of the husband or wife of such person. "1 The heir is thus required by the Dower Act to lay off and assign the widow's dower as soon as practicable after the death of the husband, and, if he does not do so within a month next after such death, the widow may file her petition for the assignment of her dower. The filing of a petition by the widow for the assignment of her dower implies the neglect of the heirs to set it off to her in accordance with the statutory re- quirement. To permit the widow to employ counsel to file a pe- 536 ASSIGNMENT OF DOWER AND HOMESTEAD. 537 tition for the assignment of her dower and then permit the heirs, who are made defendants to such petition, to come in and, by fil- ing a cross-bill for partition, compel the widow to pay a portion of their solicitor's fees, would be to permit such heirs to take advantage of their own wrong, inasmuch as the filing of the pe- tition for dower by the widow is the result of their own neglect to set off her dower, as required by section 18 of the Dower Act.- This assignment may be by parol, and when it is impracticable to assign dower by metes and bounds, an allotment may be made to the holder of the dower estate out of his or her proportionate share of the rents and profits arising from the entire property. The holder of the dower estate may, by an arrangement with the heir or devisee, suffer him to rent out the land with the under- standing that such holder, in lieu of dower, is to receive one- third of his or her proportion of the annual rentals.^ Where no demand is made, or petition filed, for the assignment of dow- er, the heirs-at-law are entitled to the whole of the rents. Dam- ages are allowed from the time of demand and a refusal to assign dower. One-third of the rents of the land in which there is dower forms a proper measure of such damages, and until de- mand is made, the surviving wife or husband is entitled to no damages. The filing of a petition for the assignment of dower against the heirs-at-law is a sufficient demand in itself to give a claim to one-third of whatever rents have accrued since that time as damages.^ The right to dower is created by law; the partic- ular portion of the premises to be enjoyed by the widow or sur- viving husband is ascertained by the assignment; and as the as- 1— Section 18, chapter 41, 3— Lenfer v. Henke, 73 111. 405; "Dower." Starr & Curtis Anno- Rawson v. Corbett, 150 111. 466; tated Statutes of Illinois, with 10 Am. & Eng. Ency. of Law, 26. Jones & Addington's Supplements ed., pp. 172, 175, 178; Sill v. Sill, thereto. Vol. 1. p. 1469, and cases 185 111. 608. cited; Vol. 4, p. 447, and cases 4— Bedford v. Bedford, 136 III. cited; Kurd's R. S. of 111., 1905, 854; Peyton v. Jeffries, 50 111. 143; p. 770. Rawson v. Corbett, 150 111. 466; 2— Gehrke v. Gehrke, 190 111. Sill v. Sill, 185 111, 608. 173; Rawson v. Corbett, 150 111. 466. 538 THE LAW OF ESTATES. signment does not create or transfer any interest in land it may be made without writing — by a verbal agreement made and en- tered into between the owner of the fee and the party entitled to dower.^ The homestead estate is measured and defined by value alone; it may extend to and embrace the entire body of land to which it attaches ; and that estate may also be assigned by parol.^ It is not necessary that legal proceedings should be had in assignment of dower ; and if the same is fair, it will be consid- ered validJ Assignment of dower will not be indefinitely de- layed to await the slow progress of another suit under control of adverse interests, involving matters of an entirely different na- ture, and under which the assignment of dower was merely inci- dental to the pending proceedings.^ And in proceedings, where the decree is held correct, it is not necessary to serve a copy of the decree on the party in possession before issuing a writ of possession and obtaining service of the same.^ In a proceeding for the assignment of dower by a citizen of Illinois, against one defendant of the same State and another a citizen of the State of New York, and where the property involved was owned by the defendants jointly, it was held : As these were necessary parties to such suit, the cause cannot be removed from the State to the Federal court.^'' Personal representatives, executors and administrators are not necessary parties to a bill for assignment of dower and home- stead.^ ^ A surviving husband or wife cannot sell, convey or lease dower or homestead rights to a stranger to the title, before such dower and homestead have been set off and assigned; and 5 — Schnebly v. Schnebly, 26 111. 8 — Heuschkel v. Heuschkel, 86 116; Lenfers v. Henke, 73 111. 405; 111. App. 135. 5 Am. & Eng. Ency. of Law, 924, 9_Agnew v. Lichten. 19 111. 925; 1 Washburn on Real Prop- . ^g erty, 256; Pearce v. Pearce, 184 jjj 239 10— Rand v. Walker, 117 U. S. 340. 293. 11 — Higgins v. Higgins, 219 IlL 7 — Campbell v. Moore, 15 111. 146. 6 — Pearce v. Pearce, 184 111. p. )3. 7— Can App. 129. ASSIGNMENT OF DOWER AND HOMESTEAD. 539 damages will not be allowed in condemnation proceedings to a stranger holding a lease executed under such circumstances. And it is also held, where an understanding between a surviving husband and his daughters was, that their father might reside on the home place, and receive the rents therefor, while each daughter was to receive rents from other property, amounts to an arrangement for division of the rents only, and does not amount to a parol assignment of dower and homestead; partic- ularly is this so, where it appears under such arrangement, the surviving husband pays the taxes on all the property and keeps up the repairs at his own expense.^ ^ 618. If assignment not made within month — suit. "If such heir or person shall not, within one month next after such death, satisfactorily assign and set over to the surviving husband or wife, dower in and to all lands, tenements and hereditaments whereof by law he or she is or may be dowable, such survivor may sue for and recover the same by petition in chancery, as hereinafter prescribed, against such heir or other person, or any tenant in possession, or any other person claiming right or pos- session in said estate. "^^ ''The petition may be filed in any court of record, of competent jurisdiction in the county where the estate or some part thereof is situated. "^ ^ " Infants may pe- tition by guardian or next friend, and other persons under guardianship by their conservators. When an infant or person under guardianship is a defendant, he may appear by guardian or conservator, or the court may appoint a guardian ad litem for such person, and compel the person so appointed to aet."^^ "The petition shall set forth the nature of the claim, and particularly specify the premises in which dower is claimed, and shall set forth the interests of all parties interested therein so far as the 12 — C. B. & D. Ry. Co. v. Kelly, 14— Section 21, chapter 41, 221 III, 498; see also Best v. Jenks, "Dower." 123 111. 447; Union Brewing Co. v. 15 — Section 22, chapter 41, Meier, 163 111. 424. "Dower." 13— Sections 19, 20, chapter 41. "Dower." 540 THE LAW OF ESTATES. same are known to the petitioner, and shall pray for the assign- ment of such dower. "^^ Neither minor heir nor his guardian can make a valid assignment of dower; where such are the only in- terested parties the proceeding must of necessity be by the court.^^ And notwithstanding the statute, the guardian has no power to enter the appearance of his ward in a suit against the latter, where the ward has not been served with process.^ ^ But the guardian may appeal for ward.^^ 619. Necessary parties include occupants, all interested par- ties, unknown owners, unknown interests. ' ' Every person hav- ing any interest in the premises, whether in possession or other- wise, and who is not a petitioner, shall be made a defendant to such petition. "20 "When there are any persons interested in the premises whose names are unknown, or the share or quantity of interest of any of the parties is unknown to the petitioner, or where such share or interest shall be uncertain or contingent, or the ownership of the inheritance shall depend upon an executory devise, or the remainder shall be contingent, so that such parties cannot be named, the same shall be stated in the petition, "^i " ^u persons interested in the premises in which dower is claimed, whose names are unknown, may be made parties to such petition by the name and description of unknown owners of the premises, or as the unknown heirs of any person who may have been in- terested in the same. ' '-^ 620. Summons and notice by publication the same as suits in chancery. "The defendants to any such petition shall be 16— Reference to statutes in 19— Sill v. Sill, 185 111. 601. notes 13, 14, 15. Starr & Curtis 20— Section 23, chapter 41, Annotated Statutes of Illinois, "Dower." with Jones & Addington's Supple- 21 — Section 24, chapter 41, ments thereto, Vol. 2, pp. 1469, "Dower." 1470, and cases cited; Vol. 4, pp. 22— Section 25, chapter 41. 447, 448, Kurd's R. S. of 111., 1905, "Dower;" reference to statutes, p. 770. notes 20, 21, 22. Starr & Curtis 17 — Bonner v. Peterson, 44 111. Annotated Statutes of Illinois, 253; statute given, note 14. Vol. 2, p. 1470; Kurd's R. S. of 18— Dickenson v. Dickenson, 124 111., pp. 770, 771. 111. 483. ASSIGNMENT OP DOWER AND HOMESTEAD. 541 summoned in the same manner as defendants to suits in chan- cery." Unknown owners, or parties in interest, of the premises, and the unknown heirs of any such persons, may be notified by advertisement as in cases in chancery. "23 "When it shall ap- pear by affidavit filed, as in cases in chancery, that any defend- ant resides or has gone out of the State, or upon due inquiry cannot be found, or is concealed within this State so that process cannot be served on him, and the affiant shall state the place of residence of such defendant, if known, or that upon diligent in- quiry his place of residence cannot be ascertained, he may be notified in the same manner as in such case in chancery. "2* "Non-resident defendants may be served by a copy of the peti- tion in the same manner that such defendants in chancery may be served by a copy of the bill of complaint, and the service thereof may be proved as in such case provided. "^^ "Any de- fendant who is not summoned, served with a copy of the peti- tion, or shall not receive the notice required to be sent him by mail, or the heirs, devisees, executors, administrators and other legal representatives of such person, may appear and answer the petition within the same time and upon the same conditions, and with like effect as in other cases in chancery, "^s 621. Pleadings and requirements — hearing — decree. "The petitioner may, in his petition, require the defendants or any of them to answer his petition on oath, in which case the answer shall have the same effect as an answer in chancery under oath. "2'^ "During the pendency of any such suit or proceeding 23 — Sections 26, 27, chapter 41, ments thereto, Vol. 2, p. 1471; "Dower." Kurd's R. S. of 111., 1905, p. 771. 24 — Section 28, chapter 41, See also sections 14 to 22, chapter "Dower." 22, entitled "Chancery." Starr & 25 — Section 29, chapter 41, Curtis, etc.. Vol. 1, pp. 557 to 577, "Dower." and cases cited; Vol. 4, p. 95, et 26 — Section 30, chapter 41, seq., and cases cited; Kurd's R. S. "Dower." Reference to statutes, of 111., 1905, pp. 228, 229, 230; Oet- notes 23, 24, 25, 26. Starr & Cur- tinger v. Specht, 162 111. 1S2. tis Annotated Statutes of Illinois, 27 — Section 31, chapter 41, with Jones & Addington's Supple- "Dower." Statute reference same as note 26. 542 THE LAW OF ESTATES. any person claiming to be interested in the premises may appear and answer the petition, and assert his or her rights, by way of interpleader; and the court shall decide upon the rights of per- sons appearing as aforesaid, as though they had been made par- ties in the first instance. "-^ "Petitions for the recovery and as- signment of dower shall be heard and determined by the court upon the petition, answer, replication, exhibits and other testi- mony without the necessity of formal pleading. The court may direct an issue or issues to be tried by a jury, as in other cases in equity. "29 "When the court adjudges that the one entitled there- to recover dower, it shall be so entered of record, together with a description of the land out of which he or she is to be so en- dowed, and the court shall thereupon appoint three commission- ers not connected with any of the parties either by consanguinity or affinity, and entirely disinterested, each of whom shall take the following oath, etc."^° Strict proof of regular paper title need not be made on issue of non-seizen; prima facie proof is sufficient by deed or other instrument, unless rebutted or such deeds are attacked for fraud or forgery or some other cause.^^ But a claim by a defendant based upon improvements made on the land in which petitioner is not entitled to dower, must be strictly averred and proved ; and, if such proof is not made, he cannot complain that no mention is made of improvements in the commissioner's report.^s The record must show that the commissioners were duly sworn as required by the statute.^^ And the statutory oath prefixed to the report of the commissioners must be a part of the report and record.^^ 622. Division by commissioners. "The commissioners shall go upon the premises, and if the same are susceptible of division, 28 — Section 32, chapter 41, pp. 1471 to 1474 and cases cited; "Dower." Kurd's R. S. of 111., 1905, p. 771. 29— Section 33, chapter 41, 31— Becker v. Quigg, 54 111. 390; "Dower." Reich v. Berdel, 120 111. 499. 30— Section 34, chapter 41, 32— Reich v. Berdel, 120 111. 499. "Dower." Statute reference, notes 33 — Lloyd v. Malone, 23 111. 43; 28, 29, 30. Starr & Curtis Anno- Durham v. Mulkej-, 59 111. 91. tated Statutes of Illinois, Vol. 2, 34— Lloyd v. Malone, 23 111. 43. ASSIGNMENT OF DOWER AND HOMESTEAD. 543 without manifest prejudice to the parties in interest, shall set off and allot to the person entitled thereto his or her dower, by metes and bounds, according to quality and quantity, of all the prem- ises described in the order of the court. "^5 "The dower need not be assigned in each tract separately, but may be allotted in a body out of one or more of the tracts of land, when the same can be done without prejudice to the interests of any person inter- ested in the premises. "^^ The commissioners have no power to make partition in such proceedings, among the interested parties entitled to dower.3'^ Their duty is to set off one-third according to quantity and qual- ity by metes and bounds, where it is practicable so to do; and the court in such proceeding will require this to be done in all cases, where it does not prejudice the rights of any interested party, and where it is practicable to do so.^^ The statute quoted, which provides, that in certain cases, where there are several tracts of land in which a wife or husband may be entitled to dower, the same may be set oft' and allotted to her in a body,, has no application where there are purchasers of such lands, or a portion of them, who have acquired interests therein. The mere fact that a widow is occupying one of several distinct parcels of land, as a homestead, in all of which she is entitled to dower, will not authorize the allotment of her entire dower interest in all the parcels, out of that portion occupied as a homestead.^^ Dower is not assignable from part of an estate in lieu of the whole, unless it be done with the consent of parties in interest.^" Nor can such interest be assigned to one heir, relieving the lands of another.'*^ Where A acquired title to land subject to the dower right of 35 — Section 35, chapter 41, 37 — Lloyd v. Malone, 23 111. 43. "Dower." 3S— Atkins v. Merrell, 39 111. 62. 36— Section 36, chapter 41, „„ ^ , ,„ . "Dower." Statute reference, notes 39-Peyton v. Jeffries, 50 111. 35, 36. Starr & Curtis Annotated ■*■ Statutes of Illinois, Vol. 2, pp. 40— Schnebly v. Schnebly, 26 111. 1474, 1475; Kurd's R. S. of 111., H^- pp. 771, 772. See also Longshore v. 41 — Haines v. Hewett, 129 HI. Longshore, 200 111. 474. 347. 544 THE LAW OF ESTATES. the complainant, and after A's death dower was assi^ed to his widow in the same, and the court subsequently assigned the same land to the elder dowress that had been assigned to A's widow. Held: This being a vital error, it follows that the assignment of damages was wrong, and the decree of the court must be reversed, and the cause remanded with directions to re-assign dower of appellee's interest, upon the bases herein indicated. The rule governing the decision being as follows: "If before the assignment of dower to the ancestor's widow, the grantee should die, and his own widow be endowed, then the subsequent assignment of dower to the elder dowress would operate to interrupt the enjoyment of the other widow in a proportionate part, during the lifetime of the former, but no longer. ' '^^ 623. Homestead — dwelling house — assignment of n.ot to af- fect estate of homestead — waiver. "The surviving husband or wife shall have the homestead or dwelling house, if he or she desires, and such allotment shall not affect his or her estate of homestead therein, but if the dower is allotted out of other lands, the acceptance of such allotment shall be a waiver and release of the estate of homestead of the person entitled to dower, and his or her children, unless it shall be otherwise ordered by the court. "*^ In a case where a mortgage was foreclosed, in which the wife did not join; the decree in such case provided and directed a sale of the residue, subject to dower, which was held valid.'*"* The surviving husband or wife under the statute have conferred upon them the homestead and dower rights when assigned. No third person, nor any purchaser or grantee of 42 — 1 Scribner on Dower, 319, See also section 25, chapter 106, and cases cited, note 3; Steele v. entitled "Partition." Star & Curtis, La Frambois, 68 111. 456. etc.. Vol. 3, pp. 2921, 2924; Kurd's 43— Section 37, chapter 41, R. S. of 111., 1905, pp. 1495, 1496. "Dower." Starr & Curtis Anno- See also Walker v. Doan, 108 IlL tated Statutes of Illinois, Vol. 2, 236; Same v. Same, 101 111. 628; pp. 1475, 1478. and cases cited; Cool v. Jackson, 13 111. App. 560. Kurd's R. S. of 111., 1905, p. 772. 44— Kail v. Karris, 113 111. 410. ASSIGNMENT OF DOWER AND HOMESTEAD. 545 the estate of homestead has that right.^'^ The estate of home- stead can have no separate existence independent of the title of the householder, which title constitutes one of its essential elements, and from which it is inseparable.*^ And it is held that under section 4, chapter 52, entitled "Exemptions,"*'^ the homestead estate is an estate in land and not merely an exemp- tion; and when the interest of the householder does not exceed $1,000 in value the homestead estate comprises his entire title, leaving no interest to which liens can attach or which can be conveyed separately.*^ 624. Report of commissioners — approval by court, effect^ possession. "The commissioners shall make report in writing, signed by at least two of them, showing what they have done, and if they have made a division, describing the premises allotted by metes and bounds or other proper description; and the allotment so made, if approved by the court, shall vest in the person entitled thereto an estate in the lands and tenements set off and allotted to him or her for and during his or her natural life; and the court shall forthwith cause such person to have possession by writ directed to the sheriff for that pur- pose. "*9 When premises are assigned for dower, the assign- ment, like a deed, without mention of appurtenances, will pass all things which are incidents appendant or appurtenant thereto; and in the absence of any restrictions in the proceed- ings, it will be presumed that they were taken into considera- tion by the commissioners and regarded as a charge upon the other portion in favor of that allotted. ^*^ By this statute, the approval of the report of the commissioners setting off dower 45— Best V. Jenks, 123 111. 447; 48— Roberson v. Tipple, 209 III. C. B. & D. Ry. Co. v. Kelley, 221 40, and cases cited on page 41. 111. 498, and cases cited. 49 — Section 38, chapter 41, 46 — Section 4, chapter 52, "Ex- "Dower." Starr & Curtis Anno- emptions." Starr & Curtis Anno- tated Statutes of Illinois, Vol. 2, tated Statutes of Illinois, Vol. 2, p. p. 147, and cases cited; Kurd's R. 1874. S. of 111., 1905, p. 772. 50— Morrison v. King, 62 111. 36. 85 546 THE LAW OF ESTATES. to a widow, vests in her an estate for life in the land assi^ed to her, and the court is required forthwith to cause her to have possession by a writ directed to the sheriff for that pur- pose.^i Where a specific sum of money was awarded in lieu of real estate with consent of dowress ; it was held, the real estate must remain intact, though not producing annual income suffi- cient to meet the dower awarded.^2 i^ ^-j^q following case, a decree was entered finding sufficient facts to sustain dower, which the court held valid.^^ 625. When land cannot be divided — proceedings. "When the estate out of which dower is to be assigned consists of a mill or other tenement which cannot be divided without dam- age to the whole, and in all cases where the estate cannot be divided without great injury thereto, the dower may be as- signed of the rents, issues and profits thereof, to be had and received by the person entitled thereto as tenant in common with the owners of the estate, or a jury may be empaneled to inquire of the yearly value of the dower therein, who shall assess the same accordingly, and the court shall thereupon enter a decree that there be paid to such person as an allowance in lieu of dower, on a day therein named, the sum so assessed as the yearly value of such dower, and the like sum on the same day of each year thereafter during his or her natural life, and may make the same a lien on any real estate of the party against whom such decree is rendered, or cause the same to be otherwise secured. "^^ Where taxes were paid and improvements made by widow, before she was assigned dower upon lands she was 51 — Agnew v. Fultz, 119 111. 296. tion of statute: Bonner v. Peter- 52— Larson V. Wolfe, 163 111. 552. son, 44 111. 253; Fleming v. Ven- 53— Gogan v. Burdick, 182 111. num, 45 111. 374; Walsh v. Reis, 50 126. Ill- 477; Meyer v. Pfeiffer, 50 111. 54 — ^Section 39, chapter 41, 485; Donoghue v. Chicago, 57 IlL "Dower." Starr & Curtis Anno- 235; Atkins v. Merrell, 39 111. 62; tated Statutes of Illinois, Vol. 2, p. American v. Rimpert, 75 111. 228; 1476, and cases cited; Kurd's R. S. Scammon v. Campbell, 75 111. 223; of 111., 1905, p. 772. And see the Wheeler v. Dav^^son, 63 111. 54; following cases, making applica- Kitt v. Scammon, 82 111. 519. ASSIGNMENT OP DOWER AND HOMESTEAD. 547 using, it was held she could not recover the money so paid, because the rents until dower was demanded belofnged to heirs, and the taxes paid and the improvements made were an offset to rents belonging to heirs.'^^ Annual expenses and needed repairs will be deducted from yearly value of rentals in con- sidering amount of dower to be awarded.^^ But the increase of value and rentals enures to the benefit of party entitled to dower.57 And there is no difference in the legal effect of a conveyance to a stranger for a valuable consideration, and one to a child for a good consideration, as regards the right of the grantor's widow to dower in the premises conveyed. In assess- ing the value of the widow's dower, in such case, she will be confined to the improvements on the land at the time of the conveyance, although, after the conveyance, the grantor may have erected a house on the premises with his own means.^® 626. Sale under decree — lien preserved. "Whenever any such decree is made a lien on any real estate, as provided in the preceding section, and a sale of such real estate shall become necessary to satisfy any such installment, the property shall be sold subject to the lien of the installment not then due, unless the court shall at the time direct otherwise, and subsequent sales may, from time to time, be made to enforce such lien as the installments may become due, until all the installments are paid."^^ 627. Damages from time of demand. "Whenever, in any action brought for the purpose, a surviving husband or wife 55 — ^Wheeler v. Dawson, 63 111. 1S59, p. 48, sec. 1, which extends 54. the cases, where allotment of ali- 56 — Carter v. Stookey, 89 111. mony or of specific sums of money 279. were made liens on land. Starr & 57— Gove V. Gather, 23 111. 585; Curtis Annotated Statutes of Illi- Stookey v. Stookey, 89 111. 40. nois, Vol. 2, p. 1477; Kurd's R. S. 58— Stookey v. Stookey, 89 111. of 111., 1905, p. 772. See also in 40. this connection section 1, chapter 59 — Section 40, chapter 41, 3, entitled "Conveyances." Starr & "Dower." In lieu of part of law, Curtis, etc., Vol. 1, p. 910; Kurd's R. S. p. 463. 548 THE LAW OF ESTATES. recovers dower in any lands, he or she shall be entitled to recover reasonable damages from the time of his or her demand, and a refusal to assign reasonable dower, which may be assessed by the court, or a jury, if required, may be impaneled for that purpose, and execution may issue therefor. "^^ Where a sur- viving husband or wife dies before assignment of dower, their representatives cannot have damages assessed; and this was decided where the widow dies, while her suit for dower is pend- ing. The right to dower terminates on the death of the widow ; and of course on the death of a surviving husband. The dam- ages being a consequence of a recovery of dower could only be assessed when there was a judgment in favor of dower.^^ Dam- ages against minor heir cannot be recovered. This is based upon the legal status of the minor to the effect that a guardian or minor cannot assign the widow her dower in the lands of her husband, so as to bind the minor on arriving at age; and cannot, therefore, be in default in not making such assignment, if demanded. And where lands are condemned for public im- provements, the assessment of the damages therefor, unless the contrary appears, satisfies all the title to the property, includ- ing the fee simple and all lesser estates. P having dower in the land appropriated by the city to public use, was in equity held to have dower in the proceeds paid in satisfaction of the judg- ment as damages for such appropriation of the land for public use.® 2 And it is the settled law that the bringing of suit for dower amounts to a valid demand.®^ No decree should be entered for damages before demand is made, it is held error to do so.®* Where yearly value in a dower proceeding is assessed under 60— Section 41, chapter 41, 203; Strawn v. Strawn, 50 III. "Dower." Part of R. S. 1845, p. 257; Atkins v. Merrell, 39 111. 63. 202, sec. 26. Starr & Curtis Anno- 62— Bonner v. Peterson, 44 111. tated Statutes of Illinois, Vol. 2, p. 253. 1478, and cases cited; Kurd's R. S. 63— Atkins v. Merrell, 39 111. of 111., 1905, p. 772. 62; Bonner v. Peterson, 44 111. 253. 61— Turney v. Smith, 14 lU. 241, 64— Cool v. Jackman, 13 111. and see Simpson v. Ham, 78 111. App. 360. ASSIGNMENT OP DOWER AND HOMESTEAD. 549 section 39,"^ the jury selected to try the issue, should also assess damages ; and if they fail to do so and the court in its decree awards damages not assessed by the jury, it will be irregiilar.'^^ On a petition for the assignment of dower, the court has complete jurisdiction, when it has assigned dower, to cause the widow's damages to be assessed for the detention of her- dower; and when she elects to proceed by petition under the statute, and has her dower assigned, she cannot then abandon that proceeding and invoke the aid of a court of chancery to take an account of the mesne profits. Her remedy in the pro- ceeding by petition is full and complete, and she should pursue it then, and if she fails to do so, she will be deemed to have waived it.^'^ As between themselves — ^the heirs and widow — in redeeming land from mortgage sale it is the duty of each to contribute a ratable proportion of the redemption money, ac- cording to the value of their respective interests. Thus, the heirs, by paying off the mortgage debt, should not be permitted thereby to impose the whole burden of redemption from the mortgage upon the widow, in order that she may avail herself of her dower right, and thereby compel her to refund to them the whole payment made.^^ The heirs by the discharge of the mortgage, have an equitable lien upon the estate, which they might hold against the widow till she contributed her propor- tionate share of the charge, according to the value of her inter- ests^ It is held, that a purchaser of land at an administrator's sale, subject to a mortgage given by the intestate and his wife^ by which the wife released her dower, after payment of the mortgage is not chargeable for rents and profits as mortgagee in possession, in a contest between him and the widow claim- ing dower in the equity of redemption. As respects the right of dower, he would be chai'geable with nothing until demand 65— Ante 625. Selb v. Montague, 102 111. 446; 66— R. R. Co. V. Curtenius, 65 III. Montague v. Selb, 106 111. 49. 120. 69 — 1 Washburn on Real Prop- 67— Simpson v. Ham, 78 111. 203. erty, 2d ed., 186; Cox v. Garst, 105 68— Cox V. Garst, 105 111. 342; 111. 342. 550 THE LAW OF ESTATES. made for the assignment of dower, and refusal. The right to damages for detention of dower is incident to right of dower and either falls or is allowed with itJ*^ And it is held, where the widow consents to the sale of property by the guardian of her children, she is not estopped from claiming dower. "^ Neither will administrator's statement unauthorized by widow, estop her dower.'^2 The administrator of the widow, where she dies before decree for dower cannot recover mesne profits. And such was held, where a decree assigning dower to a widow, at her suit against the alienees of her husband, was reversed and remanded for further proceedings by the Supreme Court. The theoiy of the decision is based on the doctrine that she must establish her right to dower in her lifetime. The widow died without establishing her right, and the damages consequent upon the recovery of dower cannot be assessed. The principal thing was extinguished by the death of the widow, and with it fell the incident.'^^ If the widow had died after a decree for the assignment of dower, became final and conclusive, the claim of the administratrix to mesne profits might, perhaps, be considered as within the equity of the statute.''' * 628. Power of court. "The commissioners shall, at all times, be subject to the directions of the court; and any one or more of them may, before the final confirmation of the report, be removed, and others appointed in their stead. "^^ 629. Heirs, persons interested, may petition to have dower assigned. "Heirs, or, if under age, their guardians, or any other persons interested in lands, tenements or hereditaments, may 70 — Morrison v. Morrison, 11 111. 75 — Section 42, chapter 41, App. 605. "Dower." Starr & Curtis Anno- 71 — R. R. Co. V. Curtenius, 65 tated Statutes of Illinois, Vol. 2, 111. 120. p. 1478; Kurd's R. S. of 111., 1905, 72 — Cox V. Garst, 105 111. 342. p. 772. For fees of commissioners 73 — Hitt V. Scammon, 82 111. see section 30, chapter 53, "Fees 520. and Salaries," Starr & Curtis An- 74_Turney v. Smith, 14 111. 241. notated Statute of Illinois, Vol. 2, p. 1980. ASSIGNMENT OF DOWER AND HOMESTEAD. 551 also petition the court to have dower assigned to the person entitled thereto, which shall be proceeded in in the same manner as is prescribed in other cases. "^^ It is held to be the duty of the guardian to institute proceedings for the assignment of dower so that his wards might obtain their share of the rents and profits of the estate. It was equally his duty, on the dower being assigned, to lease the portion of the farm set apart to the heirs. And his estate is liable for whatever might have been received by a faithful discharge of those duties.''^ And it has been held, that a guardian cannot assign dower pending sale of wards ' property."* 630. Administrator's or guardian's sale^ — assignment in, of dower or homestead. "Whenever application is made to a county court for leave to sell real estate of a deceased person for the payment of debts, or for the sale of real estate of any ward, as authorized by law, and it appears that there is a dower and homestead, or either, interest in the land sought to be sold, such court may in the same proceeding, on the petition of the executor, administrator, guardian or conservator, or of the person entitled to dower and homestead, or either, therein, cause the dower and homestead, or either, to be assigned, and shall have the same power and may take lilie proceedings therefor as hereinbefore provided for assignment of dower. "'^^ All right and title which the head of the family has in the premises 76 — Section 43, chapter 41, 1, 1875. Starr & Curtis Annotated "Dower." Starr & Curtis Anno- Statutes of Illinois, with Jones <fe tated Statutes of Illinois, Vol. 2, Addington's Supplements thereto, p. 1479; Kurd's R. S. of 111., 1905, Vol. 2, p. 1479, and cases cited; p. 772. Vol. 4, p. 448, and cases cited; 77— Clark v. Burnside, 15 111. Kurd's R. S. of 111., 1905, p. 772. 64. See also section 32, chapter 106, 78 — Sx parte Guernsey, 21 111. entitled "Partition." Starr & Cur- 443. lis, etc.. Vol. 3, p. 2924; Kurd's 79 — Section 44, chapter 41, 1905, p. 1496. See section 1, chap- "Dower." As amended by laws of ter 52, entitled "Exemptions." 1875, p. 75. sec. 1: In force July Starr & Curtis, etc., Vol. 2, p. 1865; Kurd's 1905, p. 1043. 552 THE LAW OF ESTATES. which constitute the homestead, is exempted from forced sale for the payment of debts, or other purposes. It is not the mere right of occupancy, but it is the lot or ground as a residence that is exempted.^*^ Where the homestead premises do not exceed in value $1,000, there can be no valid sale of the property itself on execution or decree for the payment of debts or other pur- poses, and this exemption, on the death of the householder, is continued in force as to his widow and children, precisely as held by him. No sale can be rightfully made of the homestead by the administrator of the deceased householder to pay his debts, when the property does not exceed in value $1,000, until the exemption in favor of the widow and minor children has been in some mode terminated; and if such sale is made, a court of equity has the power to set the same aside at the instance of the homestead occupant. The homestead, when not exceeding $1,000 in value, cannot even be sold subject to the homestead right.^^ "Where the homestead exceeds $1,000 in value, the statute directs how a sale of the property may be made.82 Ji enacts that the waiver shall, to be operative, be in writing, subscribed by the householder and his or her wife or husband, if he or she have one, and acknowledged, etc., or pos- session abandoned or given pursuant to the conveyance, "or if the exemption is continued to the childi-en, no waiver or release shall be valid without the order of court directing a release thereof. "83 And if the sale is made in violation of the provi- sions of the statute equity will set such sale aside.*'* A bill for 80 — Hartwell v. McDonald, 69 pp. 1874, 188fi, 1883, and cases 111. 293; Hartman v. Schultz, 101 cited; Kurd's R. S. of 111., 1905, p. 111. 437. 1044. See also sections 10 and 11, 81 — Hartman v. Schultz, 101 111. chapter 52, "Exemptions." Starr 437; Wolf V. Ogden, 66 111. 224; & Curtis Annotated Statutes, Vol. Bursen v. Goodspeed, 60 111. 277. 2, p. 1885, and cases cited under 82 — Section 4, chapter 52, "Ex- sections of statute. See also King- emptions." man v. Higgins, 100 111. 319; 83— Sections 6, 7, chapter 52, Hotchkiss v. Brooks, 93 111. 392; "Exemptions." Starr & Curtis An- Merritt v. Merritt, 97 111. 249. notated Statutes of Illinois, Vol. 2, 84 — Conklin v. Foster, 57 111. ASSIGNMENT OF DOWER AND HOMESTEAD. 553 partition which declares that A. B. has a right of dower in all the lands, does not authorize the court to decree a sale of the lands, and that the dower shall be extinguished by the payment of a gross sum. The order of sale should protect the dowress, by directing the sale subject to her rights. A widow, under the statute, cannot be deprived of her dower, except by her own acts. If a widow applies for an assignment of dower, and this cannot be done without prejudice to the estate, a jury shall fix the annual value of the dower, and the court shall then direct how this value should be annually paid.^'^ 631. Waste by person endowed. "No person who is en- dowed of any lands shall commit or suffer any waste thereon on penalty of forfeiting that part of the estate whereupon such waste is made to him or them that have the immediate estate of freehold or inheritance in remainder or reversion, but every person so endowed shall maintain the houses and tenements, with the fences and appurtenances, in good repair, and shall be liable to the person having the next immediate estate of in- heritance therein for all damage occasioned by any waste com- mitted or suffered by him or her.''^^ 632. Representative conveying land by order of court does not lose dower. "No person who sells and conveys land by order of court for the payment of debts shall be deemed to have relinquished, by reason of such conveyance, any right of dower 104; Hartman v. Schultz, 101 111. 85 — Francisco v. Hendricks, 28 437; Lewis v. McGraw. 19 111. App. 111. 64; Tibbs v. Allen, 27 111. 119. 313. For a proceeding where land 86 — Section 45, chapter 41, was sold to pay debts, and dower "Dower." R. S. 1845, p. 202, sec. and homestead set off by decree of 30, rewritten and extended to hus- the county court, having probate band. Starr & Curtis Annotated jurisdiction, see the following Statutes of Illinois, with Jones & cases: Oettinger v. Specht, 162 111. Addington's Supplements thereto, 182, and cases cited; Jones v. Gil- Vol. 2, p. 1479, and cases cited; bert, 135 111. 27; Kenley v. Bryan, Vol. 4, p. 448, and cases cited; 110 111. 652; Hartman v. Schultz, Hurd's R. S. of 111., 1905, p. 772. 101 111. 437. 554 THE LAW OP ESTATES. which he or she may have in such' lands, unless his or her relinquishment is specified in the deed of conveyance. "^^ 87 — Section 46, chapter 41, "Dower." In lieu of R. S. 1845, p. 203, sec. 34, Starr & Curtis Anno- tated Statutes of Illinois, Vol. 2, p. 1479; Kurd's R. S. of 111., 1905, p. 773. See also section 47 of "Dower Act." Starr & Curtis, etc.. Vol. 2, p. 1480; Kurd's 1905 stat- ute, p. 773. Dower right is barred, however, by a decree entered with the wid- ow's consent and failure to re- nounce under the will bars dower. Cox V. Lynn, 138 111. 195. See also Warren v. Warren, 148 111. 641; Carper v. Crowl, 149 111. 465; Stookey v. Stookey, 89 111. 40. Dower was held barred by decree on arbitrator's award to a di- vorced wife. Marvin v. Collins, 48 111. 156, See also Stow v. Steele, 114 111. 382. Insanity of wife is no ground, in equity, for depriving such of her right to dower. Ex parte McElwain, 29 111. 442. CHAPTER XXXV DOWER, JOINTURE, ADVANCEMENTS Sec. 633. Dower generally. 634. Dower right subject to lien and incumbrance. 635. Effect of conveyance by either party on eve of marriage. 636. Jointure bars dower. 637. Purchase of land by husband in name of wife prima facie presumed to be an advance- ment or settlement. 638. Provision in will bars dower, election, renunciation. Sec. 639. Renunciation must be within year after letters. 640. Testate estate and no descend- ant, election, in lieu of dower. 641. Divorce, effect of. G42. Adultery, effect of. 643. Judgment, conveyance, laches, crime, not to bar other's dower. 644. Exchange of land, dower in. 645. Property acquired after will. Sec. 633. Dower generally. Since the legislature of the State of Illinois, conferred extended power and jurisdiction on courts of probate in matters relating to the sale of real estate to pay debts, in 1887, all persons holding liens against the real estate or any part thereof, sought to be sold to pay debts, by any executor or administrator, and all persons having or claim- ing any interest in such real estate or any part thereof, in pos- session or otherwise, made parties to such proceeding, the pro- bate court may adjust and settle all equities, and all questions of priority, between all parties interested, as well as investigate and determine all questions of conflicting or controverted titles, that may arise between any of the parties to such proceeding, remove clouds from any real estate sought to be sold, so as to invest the purchaser with a good an indefeasible title to the premises sold.^ And in the manner pointed out by such statute, adjust homestead and dower rights of the husband or wife.^ 1—Ante, 582, 627. 2— Jones v. Gilbert, 135 111. 127; Oettinger v. Specht, 162 111. p. 184. 555 556 THE LAW OF ESTATES. And where the county court, found and decreed, that it would be necessary to sell the whole of the real estate, subject to the homestead and dower rights of the widow, it was held: The result accomplished by the final decree, was, that the home- stead estate of the widow contributed to her dower, that part of the dower which was represented in the homestead being in abeyance until the homestead estate should be extinguished.-'^ Under this enlarged statute, it is held: the court of probate has jurisdiction and power to order the sale of real estate to pay debts, notwithstanding it may be subject to a life estate of dower or incumbered by a right of dower. But where the home- stead premises do not exceed in value the smn of $1,000, they cannot be sold to pay debts by the administrator of a deceased householder until after the termination of the exemption in favor of the widow and children.** At the common law, dower is the third part of all the lands, whereof the husband has been seized at any time during the coverture, of such an estate as the children by the wife might by possibility have inherited, and to which by the death of the husband, such wife is entitled for her life. To the consummation of dower, three things are neces- sary, to-wit: marriage, seizin and the death of the husband. Until his death, it is only an interest which attaches to the land by reason of the marriage and seizin. The estate of curtsy under the common law in the husband, is by statute in Illinois abolished; in the matter of dower, the statute of tliis State places the surviving husband or wife on the same common level j the right of the surviving husband or wife to dower being the same.^ The dower of the wife or husband is not defeated by sale on judgment and execution against the husband or wife separately.^ Dower may be barred by the assent or miscon- 3 — Kenley v. Bryan, 110 111. 652; 6 — See section 5, chapter 68, en- Oettinger v. Specht, 162 111. p. 184. titled "Husband and Wife." Starr 4 — Hartman v. Schultz, 101 111. & Curtis Annotated Statutes of II- 437. linois, Vol. 2, p. 2120, and cases 5 — See Section 1, chapter 41 en- cited; Hurd's R. S. of 111., 1905, p. titled dower statute at large given 1146; Stone v. Steele, 114 111. 382. • Ante 627. DOWER. JOINTURE, ADVANCEMENTS. 557 duct of either the husband or wife; or where the marriage was void ab initio; or for some statutory misconduct on the part of either,''' Dower in Illinois is a common law, not a statutory right, though recognized and extended by statute beyond the limits of the common law ; and the insolvency of the husband 's estate does not affect the wife's right of dower or vice versa.'* Provision for dower in equitable estates refer to equitable estates of inheritance only.^ Dower attaches to surplus after sale of mortgaged lands ; but not if sale was made during the husband 's life.^o If the deceased had lands under a contract of purchase, and before payment of the purchase money, his rights are trans- ferred, no right of dower attaches.^^ Where property is con- demned widow is entitled to dower in deceased husband's estate in such property from compensation received by heirs.^^ ^^(j in accretions to riparian property dower attaches.^ -"^ Widow is dowable of wild and unproductive lands,^* and in mines opened during husband's life; but not in unopened mines.^^ Dower does not attach to lands held in trust by deceased husband.^ ^ Dower unassigned cannot be released or conveyed except to the owner of the fee; this is the well established policy of the law,^'^ 7— See sections 14, 15, 16, chap- Thorsell, 78 111. 600; Clybourn v. ter 41, "Dower." Post, 641, 642, Pitts. Ft. Wayne R. R., 4 111. App. 643, for statute at large. 463 ; Frederick v. Emig, 186 111. 8— See statute cited note (6). 322. Lick V, Smith, 6 111. (Gill) 503. 12— Bonner v. Peterson, 44 111. 9 — Davenport v. Farrar, 2 111. 253. (1 Scam.) 314; Nicoll v. Todd, 70 13— Gale v. Kinzie, 80 lU. 132; 111. 295; Atkins v. Merrell, 39 111. Lombard v. Kinzie, 73 111. 446. 62; Allen v. Allen, 112 111. 323; 14— Schnebly v. Schnebly, 26 111. Sues V. Leinour, 16 111. App. 603; 116. section 1, chapter 41, "Dower." 15— Lenfers v. Henke, 73 III. Vol. 2, p. 1456, Starr & Curtis 405. Annotated Statutes of Illinois. 16— Gritten v. Dickerson, 202 111. 10 — Kaufman v. Peacock, 115 379. 111. 212; Virgin v. Virgin. 189 111. 17— See section 18, chapter 30, 150; Noffts V. Koss, 29 111. 301. "Conveyance Act." Starr & Curtis 11 — Atkins V. Merrell, 39 111. 62; Annotated Statutes of Illinois, Vol. Stow V. Steel. 45 111. 328; "Owen v. 1, p. 916; Kurd's R. S. of 111., 1905. Robbins, 19 111. 545; Greenbaum v. p. 466; Sloniger v. Sloniger. 161 Austrian, 70 111. 591; Morse v. 111. 279; Bank v. White, 159 111. 558 THE LAW OF ESTATES. Proceedings for assignment of dower involve a freehold and in such case appeal lies direct to the Supreme Court.^^ 634. Dower right subject to lien and incumbrance. The surviving husband or wife of an alien in this State is entitled to dower, the same as if such alien had been a native born citizen of the United States.^^ Before dower attaches, as a general rule, every lien and incumbrance existing in law or equity is prior thereto.2o At common law when the husband had executed a mortgage before marriage, the widow was not dowable in the equity of redemption. But under section 5 of the Dower Act, it is provided: That where the mortgagee of lands mort- gaged by a husband prior to his marriage shall cause the lands to be sold the mortgagor's widow, shall have dower in the sur- plus of the proceeds after satisfying the mortgage debt and costs,2i applies where such lands are sold to pay debts under an order of court, obtained by the mortgagor's administrator in a proceeding wherein all the mortgagees were parties, and their rights as lien holders were insisted upon by them and established and protected by the decree. In Illinois a wife who joins in the execution of a mortgage relinquishes her dower right so far as is necessary to satisfy the lien of the mortgage, her inchoate 147; Lewis v. King, 180 111. 266; 18— McManaman v. Blocks, 15 Farrand v. Long, 184 111. 109. In 111. App. 476. the latter case it is held: A deed 19 — Section 2, chapter 41, to the mortgagee by one mort- "Dower Act." Starr & Curtis An- gagor after the death of the other notated Statutes of Illinois, Vol. does not pass the grantor's dower 2, p. 1462, Kurd's R. S. of 111., right in the deceased mortgagor's 1905, p. 768. undivided one-half interest in the 20 — Daniher v. Daniher, 201 111. property, where the deed was in- 495; 10 Am. & Eng. Ency. of Law, tended merely as a change in the 2d ed. 169, 170; Virgin v. Virgin, mortgagee's security, and was exe- 189 111. 151; 1 Scribner on Dower, cuted by the grantor in the belief chapt. 28, sec. 15; Schope v. Schaff- that he was sole owner of the ner, 140 111. 470. property, and hence in ignorance 21 — Section 5, chapter 41, of his dower rights. See also "Dower Act." Starr & Curtis An- Campbell v. Trotter, 100 111. 281, notated Statutes of Illinois, Vol. 284; Lowman v. Lowman, 118 111. 2, p. 1463, and cases cited; Kurd's 582. R. S. of 111., 1905, p. 766. DOWER, JOINTURE, ADVANCEMENTS. 559 right of dower becomes consummate only in the excess of the proceeds of the sale. Where a wife joins in a mortgage and the lands are sold, after the husband's death, to satisfy the mortgage, the fact that those who succeed to the husband's fee title redeem the land does not discharge the mortgage lien as to the dower, but the dowress must refund to the parties mak- ing redemption her proportionate share of the amount required to redeem, according to the dower interest, and a lien attaches in equity against such dower interest in favor of the person who redeems the land.-- When a man mortgages his land and after doing so marries, his wife will be entitled to dower out of the lands mortgaged, as against every person, except the mortgagee and those claiming under him.^^ But dower does not attach in favor of second husband, where wife's twenty -year adverse possession was a continuation of first husband's tenure.^^ It was also held, in view of section 8 of the act entitled "Hus- band and wife, ' ' chapter 68 : declaring that neither a husband or wife is entitled to receive compensation for services rendered in the management of the other's property, a husband acquired no interest in the land of his wife from the fact that he has performed labor upon it.^^ And so it is held, where a wife who joins with her husband in the execution of a mortgage on his land is entitled, as against his unsecured creditors, to have dower out of the entire proceeds of the land paid to her out of the surplus after paying the mortgagees 22— Virgin v. Virgin, 189 111. 1905, p. 768; Shope v. Schaffner, 151; Burson v. Dow, 65 111. 147; 140 111. 470. Greenbaum v. Austrian, 70 111. 24 — Beuter v. Struckart, 181 111. 591; Selb v. Montague, 102 111. 543. 446; Cox v. Garst, 105 III. 342. 25— Beuter v. Struckart, 181 111. 23— Sections 3, 4, 5, Chapter 41, 543. "Dower Act." Starr & Curtis An- 26 — Section 8, chapter 68, "Hus- notated Statutes of Illinois, with band and Wife." Starr & Curtis Jones & Addington's Supplements Annotated Statutes of Illinois, Vol. thereto. Vol. 2, pp. 1462, 1463, and 2, p. 2125, and cases cited; Kurd's cases cited; Vol. 4, p. 446, and R. S. of 111., 1905, p. 1147; People cases cited; Vol. 5, p. 180, and v. Stett, 7 111. App. 294; 10 Am. & cases cited; Kurd's R, S. of 111., Eng. Ency. of Law, 2d ed. 170, and 560 THE LAW OF ESTATES. 635, Effect of conveyance by either party on eve of mar- riage. The weight of authority is, that a voluntary convey- ance by either party to a marriage contract, of his or her real property, made without the knowledge of the other and on the eve of the marriage, is a fraud upon the marital rights of such other, and such conveyance will be treated as fraudulent and void as against the party surprised, and his or her marital rights in the land so conveyed will not be affected thereby.^^ A con- veyance upon the eve of marriage, to be regarded as a fraud upon the legal rights of the intended wife, must be made with- out her consent or knowledge.^s The rule, however, is not abso- lute. It does not entitle the wife to treat every conveyance made by her husband secretly on the eve of marriage as a fraud on her rights. It may be the husband's duty to make it.^^ The cases cited in notes; "Virgin v. Virgin, 189 111. 151. 27 — 1 Scribner on Dower, chapt. 28, sec. 10; Perry on Trusts, sec. 213; Freeman v. Hartman, 45 111. 57; Clark v. Clark, 183 111. 448; Daniher v. Daniher, 201 111. 494; Babcock v. Babcock, 53 How. Pr. 97; Pomeroy v. Pomeroy, 54 How. Pr. 228; Youngs v. Carter, 10 Hun, 194; Petty v. Petty, 4 B. Mon. 215; Leach v. Duval, 8 Bush. 201; Lit- tleton V. Littleton, 1 Dev. & B. 327; Cranson v. Cranson, 4 Mich. 230; Brown v. Brownson, 35 Mich. 415; Jones v. Jones, 64 Wis. 301; Thayer v. Thayer, 14 Vt. 107; Ward V. Ward, 63 Ohio St. 125; Butler V. Butler, 21 Kan. 521. 28— Clark v. Clark, 183 111. 448; see Ward v. Ward, 63 Ohio St. 125, where it is held: That the pur- pose to deceive and defraud the other prospective spouse is im- puted to the one who makes the attempted transfer, and conceals the fact till after marriage, and that it makes no difference in principle, whether actual fraud was intended or not. And to the same effect see In Arnegaard v. Arnegaard, 7 N. Dak. 475, where any such voluntary conveyance is made without the knowledge of the other of such contracting parties it presents a prima facie case of fraud, subject to be ex- plained by the parties interested, and the burden is on the grantee to establish the validity of the deed. Fennessey v. Fennessey, 84 Ky. 519; Hamilton v. Smith, 57 Iowa 15; Champlin v. Champlin, 16 R. I. 314. 29— Daniher v. Daniher, 201 111. 494. In this case, the court speak- ing of the rule (cited in note 28) hold: Not every voluntary con- veyance is in fraud of the rights of the intended spouse. Where the intention is to provide for the children, and not to defraud the wife or husband, and the advance- ment is reasonable, when consid- ered with reference to the property of the grantor, it will not be held DOWER, JOINTURE, ADVANCEMENTS. 561 ease cited makes such conveyance prima facie fraudulent upon the dower rights of each other, and puts the burden upon the grantee to establish its validity .^^ 636. Jointure bars dower. ''When an estate in land shall be conveyed to an intended husband and wife, or to either of them, or to any person in trust for such intended husband and wife, or either of them, for the purpose of creating a jointure in favor of either of them with his or her consent, to be taken in lieu of dower, such jointure shall bar any right or claim for dower by the party jointured in any lands of the other, "^i This statute does not bar surviving wife's or husband's rights as heir of either of such who may be deceased.^^ Jointure must be by conveyance of property; ante-nuptial contract does not create jointure.^^ But any reasonable provision, accepted by any adult person in lieu of dower, is an equitable jointure, and bars dower, under such contract.^^ And it is held in the case of Barth v. Lines :^^ That this section of the statute cannot be said to deprive a widow of the power to bar her right to dower by any other form of ante-nuptial contract. But in the following case it is held, that both the widow's award and dower may be barred by an ante-nuptial contract, where such is expressed as the condition of the same.^® At the corn- fraudulent. And see in support of v. Firestone, 2 Ohio St. 415; Old- this doctrine Fennessey v. Fen- ham v. Sale, 1 B, Mon. 76; Beck- nessey, 84 Ky. 519; Baker v. with v. Beckwith, 61 Mich. 315. Chase, 6 Hill, 482; Mcintosh v. 31— Section 7, chapter 41, Ladd, 1 Hump. 459; Richards v. "Dower Act." Starr & Curtis An- Richards, 11 Hump. 429; Miller v. notated Statutes of Illinois, Vol. Wilson, 15 Ohio 108; Littleton v. 2, p. 1463, and cases cited; Kurd's Littleton, 1 Dev. & B. 327; Gaines R. S. of 111., 1905, p. 769. V. Gaines, 9 B. Mon. 295; Clark 32 — Sutherland y. Sutherland, V. Clark, 183 111. 448. 69 111. 481. 30— Daniher v. Daniher, 201 111. 33— McGee v. McGee, 91 111. 495; see supporting this exception 548. to the general rule. Chapman v. 34 — McGee v. McGee, 91 111. 548. Chapman, 92 Va. 537; Burdine v. 3.5—118 111. 374. Burdine, 98 Va. 515; Champlin v. 36 — Spencer v. Boardman, 118 Champlin, 16 R. I. 314; Firestone 111. 553. 36 562 THE LAW OF- ESTATES. mon law a legal jointure settled upon a wife before marriage, if fairly entered into, would bar her dower, but a jointure settled upon her after marriage only had the effect to put her to her election, after the death of her husband, either to accept the settlement or to demand dower.^^ Marriage of the parties to an ante-nuptial contract, coupled with the mutual covenants of the parties waiving and releasing the right of each in the property of the other, is sufficient consideration for the con- tract; and such a contract is not against public policy.^s But if the provisions for the intended wife in an ante-nuptial con- tract are disproportionate to the means of the intended husband, the husband and those claiming under him have the burden of proving that the intended wife, at the time she executed the contract, had full knowledge, or reasonable means of knowing, the nature, character and value of the intended husband's prop- erty, and this knowledge must be brought directly to the in- tended wife in order to bind her under such contract.^^ And such right of election is recognized and retained by section 9 of the Dower Act, which is as follows: *'If before marriage, but without such assent, or if after marriage, land shall be given or assured for the jointure of a wife or husband in lieu of dower, such wife or husband may elect whether to take such jointure, or to be endowed as herein provided, but shall not be entitled to both."'**' And it is held in Heiser v. Sutter, "^^ that B. S., upon the death of her husband, was bound by said post-nuptial set- tlement, unless she elected, in lieu thereof, to take dower in her husband's real estate. She was not entitled to retain the prop- erty which she received under said settlement and at the same time recover her dower. She is not entitled to both, but must 37—11 Am. & Eng. Ency. of 40— Section 9, chapter 41, Law, 2d ed. p. 92, and cases cited "Dower Act." Starr & Curtis An- in notes. notated Statutes of Illinois, Vol. 38— Kroell v. Kroell, 219 111. 2, p. 1464; Kurd's R. S. of 111., 105. 1905, p. 769. 39— Murdock v. Murdock, 219 41—195 111. p. 382; Heiser v. 111. 123; see also Yarde v. Yarde, Sutter. 187 111. 636. DOWER, JOINTURE, ADVANCEMENTS. 563 elect to retain the property received by virtue of the settlement or return the same and recover dower. 637. Purchase of land by husband in name of wife prima facie presumed to be an advancement or settlement. The gen- eral rule is, that where the purchase money of land is paid by one person and the title is taken in the name of a third party, there such third party holds the title in trust for him who pays the purchase money. But the purchase of land by a parent in the name of a child, or by a husband in the name of his wife, will, prima facie, be presumed to be an advancement or settle- ment, and not a trust. This latter presumption may be either supported or rebutted by proof of antecedent or contemporane- ous acts or facts, or by proof of any acts or facts so soon after the purchase as to be fairly considered a part of the trans- action.42 ^y^ advancement cannot be established by parol evi- dence, but, on the contrary, ''the gift or grant must be expressed in writing as an advancement, or charged in writing by the intestate, or acknowledged in writing" by the donee or grantee.'*^ An advancement which is not evidenced in the man- ner required by the statute, is, in legal effect, no advancement at all, however clearly it may appear it was so intended. The mere making and delivery of a quit claim deed by a person to his grand- father, as to the lands of the latter, afford no evidence of an intention on the part of the grantor to release an expected in- heritance. And so it is held, that under such a state of facts, a contract of a prospective heir with his ancestor, to take prop- erty conveyed to him, in full of his share in the grantor's estate, as heir, is insufficient to show such agreement.^* "Where a father executes a deed for a tract of land to one child, who 42— Maxwell v. Maxwell, 109 157 111. 33; Fry v. Morrison, 159 111. 588; Cartwright v. Wise, 14 111. 244. 111. 417; Taylor v. Taylor, 4 Gilm. 43— See Sec. 7, chapter 39, "De- (111.) 303; 10 Am. & Eng. Ency. scent." Chapter III of this work of Law, 2d ed., pp. 18, 19 and au- Ante 66. Pry v. Morrison, 159 111. thorities cited in notes; Duval v. 244. Duval, 153 111. 49; Goelz v. Goelz, 44— Long v. Long, 118 111. 638; Galbraith v. McLain, 84 III. 379. 564 THE LAW OF ESTATES. accepts and takes possession of the same, upon the express un- derstanding and agreement that it is in lieu of all claim such child may have in and to the residue of the father's estate upon his death, and that such child will release to the other children, all his claim in expectancy to the residue of the estate, such contract is legal and binding, and will be enforced in equity. And such agreement may be established by parol evidence,*^ Payment by one acting as executor, to the widow, of a sum specified in an ante-nuptial contract as in lieu of her claims on the estate, in accordance with the testator's directions in his will, is held to be valid, even though the probate of the will should be afterward set aside and the will annulled, as the act is one which any executor or administrator would be required to do in due course of administration.*'' A will is regarded as a convey- ance to take effect in future. The laws of descent operate with- out any agency of man, while the law of wills is wholly the agency of man.*^ 638. Provisions in will bars dower — election — renunciation. *'Any devise of land, or estate therein, or any other provision made by the will of a deceased husband or wife for a surviving 45 — Galbraith v. McLain, 84 111. under whom both parties 379. claim, unaccompanied by any act 46 — Hundall v. Ham, 172 111. 76. showing what disposition he made An agreement to make or not to or intended to make of his estate, make a certain disposition of are not evidence. Chadwick v. property, by will or otherwise, Webber, 3 Greenlf. 141; Hatch v. may be specifically enforced in Straight, 3 Conn. 31; Bulkeley v. equity if based upon a valuable Noble, 2 Pick. 337; Hayne v. Rut- consideration. Green v. Broyles, ter, 24 Pick. 242; Ladd v. Abd, 18 3 Humph. 167; Maddox v. Rowe, Conn. 513; 1 Greenleaf on Evi- 23 Ga. 431; Frisby v. Parkhurst, dence, sec. 110; Starkie on Evi- 29 Md. 58; Gupton v. Gupton, 47 dence. Note 1, p. 88; Morse v. Mo. 37; Carmichael v. Carmichael, Thorsell, 78 111. 600, and cases 72 Mich. 76; Ballman v. Overall, cited. 80 Ala. 451; Taylor v. Mitchel, 87 All agreements by expectant Pa. St. 518; Sharkey v. McDer- heirs in regard to their future mott, 91 Mo. 647; Wright v. Tins- contingent estates, when fairly ley, 30 Mo. 389; Manning v. Pip- made, will be enforced in equity, pin, 80 Ala. 357. Parsons v. Ely, 45 111. 232; Long 47—2 Blackstone's Com. 286. v. Long, 118 111. 638; Galbraith v. Declarations of the ancestor, McLain, 84 111. 379; Kenney v. DOWER, JOINTURE, ADVANCEMENTS. 565 wife or husband, shall, unless otherwise expressed in the will, bar the dower of such survivor in the lands of the deceased, unless such survivor shall elect to and does renounce the benefit of such devise or other provision, in which case he or she shall be entitled to dower in the lands and to one-third of the personal estate after the payment of all debts. Mere bequest of per- sonal estate is not sufficient, the devise must be of land, or some interest therein, with the widow's express or implied assent to relinquish.*^ Kenunciation of will by surviving widow, does not affect will, it stands, and the statute steps in and provides for equalizing bequests in such case.*^ Where no renunciation is made, it will be conclusively presumed the devise is accepted.'^^ It is held, that a devise by will to the wife of the testator, in equity will be regarded as an offer to purchase the wife's dower interest in the entire realty of the testator ; and upon acceptance of such devise, the wife's dower is barred; but the corpus of such devise retains the nature of dower to such an extent as Tucker, 8 Mass. 142; Quarles v. Quarles, 4 Mass. 680; Hobson v. Trevor, 2 P. Wms. 191; Fitch v. Fitch, 8 Pick. 479; Witherell v. Witherell, 2 Eng. Ch. 184; Varick V. Edwards, 1 Hoff. Ch. 382. These citations cover generally matters in text, and notes thereof 44, 45, 46 and 47. In Hundall v. Ham, cited in note 46, the term "descent" in its technical sense, denotes the trans- mission of real estate, or interest therein, on the death of the owner intestate, to some person by in- heritance, and, as so used, is dis- tinguishable from transmission by devise, which is technically by purchase, and from the transmis- sion of personal property, which is governed by the rules of dis- tribution. 48 — Section 10, chapter 41, "Dower Act." Starr & Curtis An- notated Statutes of Illinois, with Jones & Addington's Supplements thereto. Vol. 2, p. 1464, and cases cited; Vol. 4, p. 446, and cases cited; Vol. 5, p. 180, and cases cited; Kurd's R. S. of 111., 1905, p. 769. The following cases apply the statute: Jennings v. Smith, 29 111. 116; Deltzer v. Schuester, 37 111. 301; Brown v. Pitney, 39 111. 468; Haynie v. Dickens, 68 111. 267; Gauch v. St. Louis Mut. Life Ins. Co., 88 111. 251; Green v. Birch, 2 111. App. 528; Heslet v. Heslet, 8 111. App. 22; Cowdry v. Hitchcock, 103 111. 262; Collins v. Wood, 63 111. 285; Ditch v. Sen- nott, 117 111. 362; Evans v. Price, 118 111. 593. 49 — McMurphy v. Boyles, 49 111. 110; Nicoll V. Scott, 99 111. 529; Marvin v. Ledwith, 111 111. 144. 50— Scheible v. Rinck, 195 111. 640. 566 THE LAW OF ESTATES. to be exempt from payment of testator's debts.^^ And where lots in Colfax and one hundred and sixty acres of land were devised to the widow for life in lieu of dower and homestead, and she accepted such provision made for her, the court below ordering the one hundred and sixty acres sold, without reserving her rights in the same. It was held: The property devised to her in lieu of dower and homestead, is not in excess of her rights in the estate as a widow, she took as a purchaser for value, and the land could not be sold to pay the testator's debts.'2 A will providing for a surviving husband only to the extent of his legal rights, in this case, one-third of the per- sonalty, is held to be a nullity in that respect.^^ The instrument renouncing need not claim any specific estate, it is sufficient where it renounces the provisions of the will.^-i The filing of a bill in chancery to contest a will is not a renunciation. The statute gives time of one year for that act after letters.^^ An election by the widow, whose husband dies, leaving an estate part testate and part intestate, is not essential to her right to claim her legal share in intestate property.'^s 639. Renunciation must be v/ithin year after letters. "Any one entitled to an election under either of the two preceding sec- tions shall be deemed to have elected to take such jointure, devise or other provision, unless, within one year after letters testamentary or of administration are issued, he or she shall deliver or transmit to the county court of the proper county a written renunciation of such jointure, devise or other provi- sion. "^'^ The former statute provided for election within one 51— Richie v. Cox, 99 111. App. App. 113. 374. 54— Gullett v. Farley, 164 111. 52— Dauel v. Arnold, 201 111. 571. 580; Carper v. Crowl, 149 111. 55— See post 639; Scheible v. 465. In this case it was as- Rinck, 195 111. 640. sumed from the record, that the 56 — Sutton v. Read, 176 111. 78. court below, made a just and 57 — Section 11, chapter 41, equitable apportionment of the "Dower Act." Starr & Curtis An- burden to the widow. notated Statutes of Illinois, with 53 — Lawrence v, Balch, 98 111. Jones & Addington's Supplements DOWER, JOINTURE, ADVANCEMENTS. 567 year after probate of will. Under the old statute, delay in election through ignorance (Statute of 1833), requiring elec- tion in six months, held not to forfeit right.'^^ But the statute is now strictly construed as to time; the filing of a bill in equity to contest a wiU does not extend time to renounce.'* 640. Testate estate and no descendant — election in lieu of dower. "If a husband or wife die testate, leaving no child or descendants of a child, the surviving husband or wife may, if he or she elect, have, in lieu of dower in the estate of which the deceased husband or wife died seized (whether the right to such dower has accrued by renunciation as hereinbefore provided, or otherwise), and of any share of the personal estate which he or she may be entitled to take with such dower absolutely, and in his or her own right, one-half of all the real and personal estate which shall remain after the payment of all just debts and claims against the estate of the deceased husband or wife. The election herein provided for may be made whether dower has been assigned or not, and at any time before or within two months after notification to the survivor of the payment of debts and claims, and not afterwards. "^<^ But if decedent dies with- thereto. Vol. 2, p. 1466, and cases claim which such survivor may cited. Vol. 4, p. 446, and cases afterwards set up to any jointure, cited, Kurd's R. S. of 111., 1905, devise, testamentary provision or p. 769. Also see sections 9 and dower thus renounced. Starr & 10 referred to in section 11 of Curtis Annotated Statutes of li- the Dower Act, ante, 637, 638. linois, with Jones & Addington's 58 — United States v. Duncan, 4 Supplements thereto. Vol. 2, p. McLean, 99. 1467; Vol. 4, p. 447; Kurd's R. 59— Scheible v. Rinck, 195 111. S. of 111., 1905, p. 769. See also, 640; Cowdrey v. Hichcock, 103 111. Chestnut v. Chestnut, 15 111. App. 262. See section 13, chapter 41, 442; Coles v. Terrell, 162 111. 170. "Dower Act," prescribing form of 60 — Section 12, chapter 41, renunciation and providing for "Dower Act." Starr & Curtis An- the filing of same in ofBce of notated Statutes of Illinois, with the Clerk of County Court, and Jones & Addington's Supplements entering same at large upon the thereto, Vol. 2, p. 1466, and cases records of the Court, thereupon it cited. Vol. 4, p. 447, and cases becomes a complete bar to any cited, Kurd's R. S. of 111., 1905, p. 769. 568 THE LAW OF ESTATES. out descendants and leaves a will disposing of an entire estate, which consists of personal property, without making any provi- sion for surviving husband or wife, the surviving husband or wife, must fall back on their legal rights under section 10 of the Dower Act,*^^ to one-third of the personal estate after the pay- ment of debts.^2 ^]i election to take under this statute bars dower in half of testator 's lands, not taken by widow.^^ The sur- viving husband or wife in the absence of child or descendants of such child cannot take under sections 10 and 12 of the Dower Act; they must elect, for they are not entitled to take under both sections. Where the terms of an instrument renouncing are uncertain, the election will be implied from acts indicating choice. The filing of a bill in equity by a widow, after renuncia- tion, for partition of deceased husband's estate, by which she claims to be the owner in fee simple of an undivided one-half of the real estate, is held to be notice that the complainant elected to take under section 12 of the Dower Act.^^ As under this sec- tion the surviving husband or wife become seized in fee simple of an undivided one-half of the real estate, such may be dis- posed of by will, and the devisee is entitled to have the estate partitioned.*^^ But if an adopted child is in existence, at the time of the death of the husband or wife, the surviving husband or wife cannot take under section 12; that section applies to husband or wife who dies testate, without leaving a child or descendant of a child.^^ 641. Divorce — effect of. If any husband or wife is divorced for the fault or misconduct of the other, except where the mar- riage was void from the beginning, he or she shall not thereby lose dower nor the benefit of any such jointure, but if such 61~Ante, 638. 566; Laurence v. Balch, 195 111. 62— Laurence v. Balch, 195 111. 628. 626. 66— Sayles v. Christie, 187 111. 63— Lessley v. Lessley, 44 111. 435; Keegan v. Geraghty, 101 111. 527; Evans v. Price, 118 111. 593. 26; Sewell v. Roberts, 115 Mass. Si— Ante, 640. 263; Morgan v. Stewart, 122 Mo. 65— GuUett V. Farley, 164 111. 297. DOWER, JOINTURE, ADVANCEMENTS. 569 divorce shall be for his or her o-s\ti fault or misconduct, such dower or jointure, and any estate granted by the laws of this State, in the real or personal estate of the other, shall be for- feited.^'' In a case based on a decree of divorce granted in Kansas for the fault and misconduct of the wife, it was held the dower right and any estate of homestead was forfeited as against the lands of her deceased husband.^^ But a divorce without fault or misconduct on the part of the husband or wife where the ground of divorce is desertion, will not defeat a claim for dower, in lands of either party after death.^^ A foreign divorce based upon constructive service for cause not recog- nized by our laws, will not bar dower or homestead. '^o 642. Adultery — effect of. "If a husband or wife volun- tarily leave the other and commit adultery, he or she shall be forever barred of dower and of the benefit of any such jointure, unless they are afterwards reconciled and dwell together. "'^^ At common law and by early statutes in aid of it, wife's dower might be barred for several causes that do not now exist. '^2 Though a decree for divorce rendered on any statutory ground will bar the dower of the guilty husband or wife, the mere fact that the surviving husband or wife has been guilty of any of such statutory offenses against the marriage relation other than that of adultery will have no effect to deprive such offender of dower. Adultery accompanied by elopement, however, oper- 67 — Section 14, chapter 41, Durham v. Durham, 162 111. 589; "Dower Act." Starr & Curtis An- Knowlton v. Knowlton, 155 111. notated Statutes of Illinois, Vol. 158; Barkman v. Barkman, 94 111. 2, p. 1468, and cases cited, Vol. App. 441. 4, p. 447, and cases cited, Kurd's 71 — Section 15, chapter 41, R. S. of 111., 1905, p. 770. Clark "Dower Act." Starr & Curtis, An- V. Lott, 11 111. 105; Hamilton v. notated Statutes of Illinois, with Hamilton, 89 111. 349. Jones & Addington's Supplements 68 — Rendleman v. Rendleman, thereto. Vol. 2, p. 1468, Vol. 4, 118 111. 257. p. 447, and cases cited, Kurd's R. 69— Gordon v. Dickison, 131 111. S. of 1905, p. 770. 141. 72— Sisk V. Smith, 1 Gilm. (111.) 70— Lynn v, Sentel, 183 111. 389; 503; Spurck v. Cook, 19 111. 415. 570 THE LAW OF ESTATES. ates to bar dower by the express provisions of section of statute quoted, unless condoned, and no decree of divorce is necessary to effect such forfeiture.'^ 643. Judgment, conveyance, laches, crime, not to bar other's dower. "No judgment or decree confessed or recovered against a husband or wife, and no laches, default, covin, for- feiture or crime of either, no deed or conveyance of either, with- out the assent of the other evinced by the acknowledgment thereof, as required by law, shall prejudice the right of the other to dower or jointure, or preclude the othor from the recov- ery thereof if otherwise entitled thereto."''^ The conveyance act regulates the manner by which dower may be relinquished.'^^ In the absence of a provision in a decree, dower is protected under this section of the statute.'^^ Under the statute of 1868, an agreement between husband and wife not acknowledged, did not bar dower.'' '^ 644. Exchange of land — dower in. "If a husband or wife seized of an estate of inheritance in lands, exchange it for other lands, the surviving husband or wife shall not have dower of both, but shall make election as hereinbefore provided, to be endowed of the lands given, or of those taken in exchange; and if such election be not evinced, by the commencement of proceedings for the recovery and assignment of dower of the lands given in exchange, within one year after the death of such husband or wife, the survivor shall be deemed to have elected to take dower of the lands received in exchange."''^ 73— Decker v. Decker, 193 111. son v. Brown, 83 111. 562; Herd- 292-293. Nelson on Divorce, sec. man v. Pace, 85 111. 345; Elder 430. V. Jones, 85 111. 384; Lewis v. 74 — Section 16, chapter 41, Graves, 84 111. 205; Bute v. "Dower Act." Starr & Curtis An- Kneale, 109 111. 652. notated Statutes of Illinois, Vol. 76— Mitchell v. Sawyer, 115 111. 2, p. 1469; Kurd's R. S. of 111., 650. 1905, p. 770. 77— Bottomly v. Spencer, 36 75— Section 18, chapter 30, "Con- Fed. Rep. 732. veyance Act." Kurd's R. S. 78— Section 17, chapter 41, 1905, p. 466. See also, Morri- "Dower Act." Starr & Curtis An- DOWER, JOINTURE, ADVANCEMENTS. 571 The word "exchanged" as used in section above, retains its common law meaning, and, as defined by Blackstone, **is a mutual grant of equal interests, the one in consideration of the other. "'^ And so applying these rules and discussing the cases the court in Hartwell v. DeVault,^^ say: "An application of the rules thus laid down to the facts of this case shows, that there was here no 'exchange' of lands within the meaning of that term. The deeds executed by the pa,rties not only do not make use of the word, 'exchange,' but, when considered in con- nection with the contract made on the same day and with all the other evidence, they do not amount to 'a mutual grant of equal interests, the one in consideration of the other. ' ' ' 645. Property acquired after will. Property acquired after a will made may or may not include the devise of such by will. Whether or not such after acquired property passes by existing will is a mere matter of the intention of the testator or testatrix as expressed by will. The court will give effect to the inten- tion and if possible from the language of the will construe such instrument to pass such property but if in doubt, after acquired property will be treated as intestate and distributed accord- ingly.81 notated Statutes of Illinois, with stone's Com., marg. p. 323; 7 Am. Jones & Addington's Supplements & Eng. Ency. of Law, pp. 115, 892, thereto. Vol. 2, p. 1469; Vol. 4, and cases cited in notes, p. 447, and cases cited; Kurd's R. 80—159 111. 333. S. of 111. 1905, p. 770. 81— Williams v. Uohnson, 112 79—1 Scribner on Dower, p. 286, 111. 66; Decker v. Decker, 121 111. sec. 11; 1 Washburn on Real Es- 343. See ante, chap. 10, 202, tate, marg. p. 158, sec. 11; 2 Black- "Construction of Wills." CHAPTER XXXVI DISPOSAL OF UNCLAIMED MONEY Sec. 646. Unclaimed money to be de- posited. 647. How obtained after deposit. 648. The court making the order Sec. for deposit is the one to apply to for recovery of funds in hands of county treasurer. Sec. 646. Unclaimed money to be deposited. "That when any administrator or executor shall have made final settlement with the county court, it shall be the duty of the court to order said administrator or executor to deposit with the county treas- urer such moneys as he may have belonging to any non-resident or unknown heir or claimant, taking his receipt therefor and have the same filed at the office of the county clerk where such settlement has been made. "^ 647. How obtained after deposit. "When money shall be deposited as aforesaid, the person or persons entitled to the same may at any time apply to the court making said order and obtain the same upon making satisfactory proof to the court of his, her or their right thereto. "^ 648. The court making the order for deposit is the one to apply to for recovery of funds in hands of county treasurer. Heretofore we have shown the settled law of this State to be in effect, that a court of equity will not assume jurisdiction in the matter of estates pending in the courts of probate, where such court can afford the requisite relief, unless special reasons be 1 — Par. 136, section 1, chapter 3. "Administration of Estates." 2 — Par. 137, section 2, chapter "Administration of Estates." Starr & Curtis Annotated Statutes Starr & Curtis Annotated Statutes of Illinois, Vol. 1, pp. 349, 350; Kurd's R. S. of 111., 1905, p. 126. of Illinois, Vol. 1, p. 350; Kurd's R. S. of 111., 1905, p. 127. 572 DISPOSAL OF UNCLAIMED MONEY. 573 deemed sufficient, by a court of equity, showing why the court of probate may not afford the relief.^ A bill in equity cannot be maintained by an administrator of an estate for the purpose of determining what disposition should be made of the funds in his hands, or what creditor should receive the fund he held for distribution; it being held that the court of probate has ample jurisdiction to settle all questions, relating to the settle- ment and distribution of estates.'* 3 — See chapter 2 of this work — "Jurisdiction," ante, 45; also Shepard v. Speer, 140 111. 238. 4— Strauss v. Phillips, 189 111. 9; Dougherty v. Hughes, 165 111. 394; Meadowcroft v. Winnebago Co., 181 111. 511-512. In the lat- ter case citing from well estab- lished authority, it is held : "When the owner of property dies intes- tate, without heirs capable of in- heriting it, the title thereof de- volves, by operation of law, upon the State." Crane v. Reeder, 21 Mich. 24; Dow v. Ohanlon, 1 N. J. 582; Commonwealth v. Hite, 6 Leigh. 588; People v. Cultoy, 3 Johns, 1. See also section 1, chap- ter 49, entitled "Escheats." Starr & Curtis Annotated Statutes of Il- linois, Vol. 2, p. 1809; Kurd's R. S. of 111., 1905, p. 1027. In Mead- owcroft V. Winnebago County, supra. It is held the act does not in anywise purport to divest the title to property, even if the title were held to be in the State. Section 1 of chapter 49 was in- tended to supersede all previous enactments in relation to the subject of escheats, and hence the law now is that the property of illegitimates dying without heirs capable of holding the same es- cheats to the County and not to the State. CHAPTER XXXVII EVIDENCE AND DEPOSITIONS, UNDER STATUTE Sec. Sec. 649. Introductory remarks. 665. 650. Witnes'ses — competency and 666, credibility of — interest or 667. criminal conviction no dis- 668. Qualification. 669. 651. Competency and credibility. 652. Freedom of religious worship — limitations — no prefer- ence. 653. Events after death of dece- dent, or after majority of minor. 654. As to transactions proved by an agent. 655. Transactions proved by par- ties entitled to benefit of statute. 656. Conversations during life of deceased adduced by ad- verse witnesses. 657. As to transactions touched by deposition of deceased. 658. Witnesses when not compe- tent, against trustees, rep- resentatives, heirs, legatees and devisees. 659. Who are interested i)arties. 660. Incompetent witnesses. 661. Incompetent witneses con- tinued. 662. When party competent to tes- tify in his own behalf — competent witnesses gen- erally. 663. Competent witnesses con- tinued. 664. Administrators as witnesses. 574 670. 671. 672. 673. 674. 675. 676. C77. 678. 679. 680. 681. 682. 683. 684. 685. 686. 687. Admissions and declarations. Agent direct and implied. Written instruments. Book accounts. Compulsory production of books for inspection. Surviving partner — contract with deceased agent. Husband and wife. Reference and application in general to said section 5 of the statute. Concerning separate proper- ty of wife. Husband and wife may be witness for and against each other. Husband and wife agents for each other. Adverse party compelled to testify. Incompetency not removed by release or assignment. Further exceptions. Production of books and writings. Printed statutes. Exemplified statutes. Reports of courts. Court records how certified. Records of cities how certi- fied. Records of private corpo- rations how certified. Form of certificate. Records of justices of the peace, certified copies. Sworn copies, false certifi- cate, penalty. EVIDENCE AND DEPOSITIONS, UNDER STATUTE. 575 Sec. 649. Introductory remarks. Before the year 1867, when the legislature of Illinois, passed an act in relation to the legal competency of witnesses, entitled ''Evidence and Deposi- tions," the common law rules as to the competency of witnesses to testify, in both law and equity proceedings were rigidly enforced in this State. At common law, no party to the record could testify, whether interested in the result or not, v*'ithout the consent of all the other parties. In courts of equity, how- ever, it was no objection, that a witness was a party to the record, the only inquiry was, whether a witness was called to support his own interest, if not interested in the result, the party might testify.! "The rule of the common law in relation to the interest of a witness is familiar to all, and operated in full force in this State until the enactment of the law of 1867. However much the existence of the rule was regretted by the most learned and distinguished courts of this country and of England, it was inexorably enforced, and witnesses of the highest character in the community were excluded from the stand, if it appeared they had an interest in the event of the suit. To make sueh competent, resort was had to a written release executed with all the forms of law. Our legislature, in a spirit of enlightened policy, abolished this rule, by declaring that no person should be disqualified as a witness in any civil action, suit or proceeding, or by reason of his or her interest in the event thereof, as a party or otherwise, or by reason of his or her conviction of any crime. "2 The act of 1867 authorized a party to call opponent as a witness; but in order to do so, required an affidavit by such party or his attorney, to show by such instrument what was expected to be proved by the opponent, and a statement in the affidavit, that the matters sought to be established by the evidence of the opponent, could not otherwise be proved. But 1— Kimball v. Cook, 1 Gilm. 6 52 111. 203; Bradshaw v. Combs, (111.) 433; Galena & Chicago 102 111. 428. Union R. R. Co. v. Welch, 24 111. 2—111. Cent. P.. R. Co. v. Weldon, 33; 111. Cent. R. R. Co. v. Weldon, 52 111. 293. See also Laws of 1867^ p. 183, sec. 1. 576 THE LAW OF ESTATES. such affidavit might be upon information and belief of the affiant.3 The competency of witnesses in the various matters relating to administrators, executors, guardians, conservators, and the various claims of every conceivable character, that must of necessity arise under the county and probate court practice, are in almost every proceeding brought in question. The legal representatives of a deceased person, the minor and others under disability, are, in such courts, coming constantly in contact with the legal competency of witnesses to testify. We therefore deem it important to give extensively the statute law of Illinois in this respect, and many of the decisions relating to such, fixing the competency of witnesses and their evidence under the act, en- titled "Evidence and Depositions,"* 650. Witnesses — competency and credibility of — interest or criminal conviction no disqualification. An act in regard to evidence and depositions in civil cases, approved March 29, 1872, in force July 1, 1872, entitled ' ' Evidence and Depositions, ' ' provides "That no person shall be disqualified as a witness in any civil action, suit or proceeding, except as hereinafter stated, by reason of his or her interest in the event thereof, as a party or otherwise, or by reason of his or her conviction of any crime ; but such interest or conviction may be shown for the purpose of affecting the credibility of such witness ; and the fact of such conviction may be proven like any fact not of record, either by the witness himself (who shall be compelled to testify thereto) or by any other witness cognizant of such conviction, as impeach- ing testimony, or by any other competent evidence."^ 3 — Bell V. Thompson, 34 111. Supplements thereto, Vol. 2, p. 529; Rann v. Rann, 95 111. 433. 1822, Vol. 4, p. 605, et seq.; Vol. 4 — Chapter 51, section 11, 5, p. 243, et seq.; Vol. 1, p. 540, chapter 19, entitled "Canals"; same Vol., p. 1092; Vol. 3, p. 3360; section 32, chapter 34, entitled Vol. 4, p. 1073; Vol. 3, p. 2964; Vol. "Counties ; section 28, chapter 4, p 988; Kurd's R. S. of 111., 1905, 116, entitled "Records"; chapter pp. 1034, 216, 565, 1626, 1527. 110, entitled "Plats." Starr & 5— Section 1, chapter 51, "Evi- Curtis Annotated Statutes of Illi- dence and Depositions." Starr & nois, with Jones & Addington's Curtis Annotated Statutes of Illi- EVIDENCE AND DEPOSITIONS, UNDER STATUTE. 577 651. Competency and credibility. Intelligence, and not age, was the test of the competency of a witness of tender years. A child of nine years testified on her voir dire that she "under- stood the nature of an oath, and that if she did not swear the truth she would get into hell fire." This being the rigid rule, the witness was held competent to testify.'' The competency of a witness is for the court to determine; the jury cannot reject testimony admitted by the court for supposed incompetency.'^ The interest of a witness does not necessarily diminish his credi- bility.s Right of party to testify in his own behalf is a per- sonal privilege.^ Where a party elicits evidence, that may or may not be competent, he by so doing is in no position to raise the competency of such witness where record is reviewed on appeal for the first time.^*^ But the competency of certain evi- dence under a bill and answer before a master in chancery, on which an original decree was entered, to set aside, alter or change such decree, may be considered in determining the com- petency of a witness and the weight or value of certain evi- dence, if the witness was found competent to testify.^^ Doubts are to be resolved in favor of the competency of a witness.^- In the case of Matze7ibaugh v. The People,^^ it is said: "The offense of which the appellant was convicted is not of the char- acter or grade of crime deemed infamous at the conmion law or nois, with Jones & Addington's R. R. Co, v. Weldon, 52 111. 290; Supplements thereto, Vol. 2, p. Smith v. West, 103 111. 332. 1822, Vol. 4, p. 605, Vol. 5, p. 243, 10— Emerick v. Hileman, 197 III. et seq., "General notes"; Kurd's 375; Becker v. Foster, 64 111. App. R. S. of 111., 1905, p. 1034. 192; Doty v. Doty, 159 111. 52; 6— Draper v. Draper, 68 111. 17. Dewes v. Osborne, 178 111. 42. 7— Wickliffe v. Lynch, 36 111. 11— Ronan v. Bluhm, 173 III. 285; Whittaker v. Whittaker, 151 209; City of Aurora v. Scott, 185 j,, ggfi ^'^' ^^^- 12— Christianson v. Dunham 8— Douglas V. FuUerton, 7 III. Towing & Wrecking Co., 75 111. App. 102. App. 274. 9— Moore v. Wright, 90 111. 470; 13—194 111. 113; 1 Greenleaf on People V. Starr, 50 111. 52; Morgan Evidence, section 373; 16 Am. & V. Roberts, 38 111. 65; 111. Cent. Eng. Ency. of Law, 2d ed., 246-247, and cases cited in notes. 37 578 THE LAW OF ESTATES. under our statute. It is a statutory offense, punishable by fine and imprisonment in the county jail. Nor is it of the class of offenses denominated cn'wen falsi, which were deemed infamous at common law. Crimen falsi, according to the better opinion, does not include all offenses which involve a charge of untruth- fulness, but only such as injuriously affect the administration of public justice, such as perjury, subornation of perjury, sup- pression of testimony by bribery or conspiracy to procure the absence of a witness, or to accuse one wrongfully of a crime, or battery, or the like."" The enactment of said section 1 of our statute on evidence has no effect to author- ize the introduction of proof of the conviction of the witness of an offense that would not have rendered him incompetent to testify in the absence of the statute."*^ As aft'ecting the credibil- ity of the claimant, he may be interrogated upon cross-examina- tion as to whether he was convicted of a crime or confined in the penitentiary. But the fact of such conviction will not dis- qualify a witness under this first section of the act in relation to evidence and depositions.^^ And where a claim for services. was sought to be collected from the estate of a deceased person, it was held proper cross-examination to show witness was con- victed of crime. 652. Freedom of religion and worship — limitations — no preference. Article 2, section 3, of the Constitution of the State of Illinois, 1870, is as follows: "The free exercise and enjoyment of religious profession and worship, without dis- crimination, shall forever be guaranteed; and no person shall 14 — 1 Greenleaf on Evidence, anbeklar v. People, 93 111. App. sec. 373; 16 Am. & Eng. Ency. of 555; Burke v. Stewart, 81 111. Law, 2d ed., 246-247. App. 509; Gem v. People, 87 111. 14a — Ante 650; Bartholomew v. App. 161; Lamkin v. Burnett, 7 People, 104 111. 601. 111. App. 143. See also Criminal 15 — Estate of Margaret Handlin Code, division 13, section 6, V. Law, 34 111, App. 84. And chapter 38. Starr & Curtis An- see the following cases in point, notated Statutes of Illinois, Vol. Gage V. Eddy, 167 111. 108; Dax- 1, p. 1397; Kurd's R. S. of III. 1905, p. 745. EVIDENCE AND DEPOSITIONS, UNDER STATUTE. 579 be denied any civil or political right, privilege or capacity, on account of his religious opinions; but the liberty of conscience hereby secured shall not be construed to dispense with oaths or affirmations, excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of the State. No person shall be obliged to attend or support any ministry or place of worship against his consent, nor shall any preference be given, by law to any religious denomination or mode of worship. "^^ Certain Chinese witnesses, in addition to the oath prescribed by the laws of this State, were also allowed to be sworn according to a Chinese practice, which was called the "Chinese Chicken- oath." The lower court ruling that those of the witnesses who were willing might take the oath, but that none of them should be compelled to do so. Part of the witnesses were sworn in that way, in addition. to the regular oath. Held: This proceeding having been had at the instance and request of the defendants they cannot be heard to complain of it.^'^ This section of the constitution was construed and defined, hi re Walker. ^^ Sec- tion 3 of article 2 of our constitution therefore constitutes a guaranty of absolute freedom of thought and faith, whether orthodox, heterodox. Christian, Jewish, Catholic, Protestant, Lib- eral, conservative, Calvinistic, Armenian, Unitarian or other religious belief, theology or philosophy, and also the right of free exercise and enjoyment of religious professions and worship of any variety of form, the only restraint upon the free exercise of liberty of conscience being, that oaths and affirmations shall not thereby be dispensed with, licentious acts excused or practices justified which are dangerous to the peace and safety of the State." 16 — Article 2, section 3, Consti- Ewing v. Bailey, 36 111. App. 191. tution of Illinois, 1870. Starr & 17— Bow v. People, 160 111. 439. Curtis Annotated Statutes of II- 18—200 111. 573. linois, Vol. 1, p. 104; Kurd's R. See section 3, article 2, Con- S. of 111., 1905, p. 54. Gtitution of Illinois 1870. Starr See also the following: Chase & Curtis Annotated Statutes of U- v. Cheeney, 58 111. 500; Nichols linois. Vol. 1, p. 104; Kurd's R. V. School Directors, 93 111. 61; S. of 111., 1905, p. 54. 580 THE LAW OF ESTATES. 653. Events after death of decedent — or after majority of minor. If party testifies only to facts occurring after the death, he comes within the first clause of section 2, chapter 51, entitled " Evidence. "^^ A guardian is competent to testify at hearing on his report to facts occurring after parents' death.^o And so a guardian by petition asking to have the homestead vested in children upon the ground that the widow had aban- doned them : It was held the widow was a competent witness to testify to facts occurring after death, and if petitioner was suing for the homestead as heir of deceased, the defendant would be competent to testify to such facts.^i So under a statement of facts occurring after death the administrator is a competent witness.22 When a witness is competent in his own behalf, under certain clauses of the statute, if questions put to him call for evidence which he is not competent to give, objection should be made, and if overruled, exception taken; unless this is done the question of his incompetency as to such evidence cannot be raised in the Appellate Court.^s And so if one who has testified is incompetent in a case against the administratrix, and objection made thereto, and subsequently such administratrix is dismissed out of such proceeding, the question of incompetency of witness is by such act removed from the cause.^^ So parties incompetent by virtue of section of statute may testify against their own interest and be bound thereby.25 The competency of a witness is not destroyed be- cause some future event may bring her within the provisions of the first clause of the act relating to evidence. 26 Where the 19 — Section 2, chapter 51, "Evi- Kingman v. Higgins, 100 111. 319. dence and Depositions." Starr & 22— Stewart v. Kirk, 69 111. 509. Curtis Annotated Statutes of II- 23— Pease v. Hunt, 60 111. App. linois, Vol. 2, pp. 1824, 1831, and 585. cases cited under section of sta- 24 — McDavid v. McLean, 202 111. tute in question. Hurd's R. S. 358. of 111., 1905, pp. 1034, 1035. See 25— McKay v. Riley, 135 111. also Black v. Miller, 71 111. App. 586; Neish v. Gannon, 198 IlL 456. 223. 20— In re Steele, 65 111. 322. 26— Baker v. Baker, 202 111. 617; 21— Carr v. Carr, 177 111. 456; Waugh v. Moan, 200 111. 302; EVIDENCE AND DEPOSITIONS, UNDER STATUTE. 581 Appellate Court finds that a person is an interested witness, such finding or judgment of that court is conclusive of that fact.27 654. As to transactions proved by an agent. Where an agent of the deceased is called and has given his evidence as a competent witness under clause 2 of section 2 evidence act, a party in interest may testify only to contradict the testimony of such agent. The incompetency of an interested witness is not waived, from the fact that the agent of the deceased has been called to testify. Such interested witness may, however, testify as to such matters as are given in evidence by such agent; but as to matters which are brought out in cross-examination of such agent which he has not testified to on direct examination, such interested witness cannot be permitted to touch upon in his testi- mony.^^ 655. Transactions proved by parties entitled to benefit of statute. The lower court, on rebuttal refused to allow appel- lant to testify either in explanation or denial of conversations and declarations which took place before the death of the dece- dent and in his presence between the heirs and the witness his surviving widow, in a proceeding for partition between the heirs against the wife of the deceased. On appeal the ruling of the lower court was held error. The court saying: Under the third clause of section 2 of the evidence act, the witness was ** clearly competent to testify in rebuttal as to transactions or Volbracht v. White, 197 111. 301. Starr & Curtis Annotated Statutes See also the following cases, re- of Illinois, Vol. 2, pp. 1841-1842, lating to the competency or in- and cases cited under section in competency of witness, in matter question. Albers Commission Co. of contest of will. Brace v. Black, v. Sessel, 193 III. 153, 125 111. 33; Pyle v. Pyle, 158 111. 27— McAyeal v. Gullett. 202 111. 289; Taylor v. Pegram, 151 111. 216; Cronin v. Royal League, 199 106; Bardell v. Brady, 172 111. 111. 234; Anthony Ittner Brick Co. 420. See section 7, chapter 51, v. Ashby, 198 111. 565. "Evidence and Depositions." 28 — Leob v. Stern, 198 111. 381. Kurd's R. S. 111., 1905, p. 1036. See also statute citations. Notes 19, 26, ante, 653. 582 THE LAW OF ESTATES. conversations between herself and an opposite party or party in interest, after such opposite party or party in interest had testified to such conversation or transaction, and on this point it would be immaterial whether the husband was present or not. There is nothing in section 5 of the act which would exclude her testimony on the ground that it related to conversations or transactions between husband and wife, for in this case they were between appellant and these heirs, and no admission of or conversation with the husband was involved. "29 656. Conversations during life of deceased adduced by ad- verse witnesses. As to matters arising under the fourth clause of the 2d section of the act relating to evidence, it is said, in the case of Volbracht v. White :^^ "The conversations or admis- sions to which an interested party may testify to under this section are the conversations or admissions which others have testified that he made — not the conversations or admissions made by the deceased person; and the party so called as a witness is competent, under this clause, to testify only to such admissions or conversations as are said to have been made by him out of the presence of the deceased person. Such is the express provi- sion of the statute and also the construction given it by this court.31 657. As to transactions touched by deposition of deceased. Under fifth clause of section 2 of the act relating to evidence. When the ''deposition of such deceased person shall be read in evidence at the trial, any adverse party or party in interest may testify as to all matters and things testified to in such deposi- tion by such deceased person, and not excluded for irrelevancy or incompetency." The death of a person cannot affect the 29 — Blanchard v. Blanchard, 31 — Buckman v. Alwood, 71 111. 191 111. 454. This clause of the 155; Maher v. Trust Co., 95 111. statute is also applied in case of App. 375; Statute citation, Starr Pease v. Hunt, 60 111. App., 586. & Curtis Annotated Statutes of II- Statute citations Same as ante linois, Vol. 2, p. 1833; Hurd's R. 653. S. of 111., 1905, p. 1035. 30—197 111., page 303. EVIDENCE AND DEPOSITIONS, UNDER STATUTE. 583 competency of a witness, in any proceeding that such exists either by the common law or by statutory enactment granting such a right to testify.^^ jf [^ jg desired to challenge the com- petency of evidence, a ruling must be required, and objection and exception taken.^s 658. Witnesses when not competent, against trustees, rep- resentatives, heirs, legatees and devisees. Section 2 of the Evidence and Deposition Act provides: **No party to any civil action, suit or proceeding, or person directly interested in the event thereof, shall be allowed to testify therein of his own motion, or in his own behalf, by virtue of the foregoing section, when any adverse party sues or defends as the trustee or con- servator of any idiot, habitual drunkard, lunatic or distracted person, or as the executor, administrator, heir, legatee or devisee, unless when called as a witness by such adverse party so suing or defending, and also except in the following cases, namely: First — In any such action, suit or proceeding, a party or inter- ested person may testify to facts occurring after the death of such deceased person, or after the ward, heir, legatee or devisee shall have attained his or her majority. Second — When, in such action, suit or proceeding, any agent of any deceased per- son shall, in behalf of any person or persons suing or being sued, in either of the capacities above named, testify to any conversation or transaction between such agent and the opposite party or party in interest, such opposite party or party in inter- est may testify concerning the same conversation or transaction. Third — ^Where, in any such action, suit or proceeding, any such 32 — Easterly Harvester Co. v. Ill, App. 511; City of Chicago, Hill, 36 111. App. 99; Butz v. v. Nodeck, 202 111. 270; Jernberg Schwartz. 32 111. App. 156; Trun- v. Mix, 199 111. 258; Keating v. key V. Hedstrom, 33 111. App. 397; Cornell Bros., 104 111. App. 450; Sprigg V. Grannemann, 36 111. Thomson v. Black, 200 111. 469; App. 102; Deuterman v. Ruppel, Insurance Co. v. Johnson, 200 111. 103 111. App. 110; Same v. Same, 362; Columbia Manfg. Co. v. 200 111. 201. Hastings, 121 Fed. Rep. 330; Starr 33 — Railroad Co. v. Randolph, & Curtis Annotated Statutes of II- 199 111. 129; Dady v. Condit, 104 linois, Vol. 2, p. 1834; Kurd's R. S. of 111., 1905, p. 1035. 584 THE LAW OF ESTATES. party suing or defending, as aforesaid, or any person having a direct interest in the event of such action, suit or proceeding, shall testify in behalf of such party so suing or defending, to any conversation or transaction with the opposite party or party in interest, then such opposite party or party in interest shall also be permitted to testify as to the same conversation or trans- action. Fourth — Where, in any such action, suit or proceed- ing, any witness, not a party to the record, or not a party in interest, or not an agent of such deceased person, shall, in behalf of any party to such action, suit or proceeding, testify to any conversation or admission by any adverse party or party in interest, occurring before the death and in the absence of such deceased person, such adverse party or party in interest may also testify as to the same admission or conversation. Fifth — When, in any such action, suit or proceeding, the deposition of such deceased person shall be read in evidence at the trial, any adverse party or party in interest may testify to all matters and things testified to in such deposition by such deceased person, and not excluded for irrelevancy or incompetency. "3-* 659. Who are interested parties. Such are usually devel- oped by the pleadings, or at the hearing or trial of an issue. Those persons, who, at common law, were incompetent as inter- ested parties in themselves or by being parties to the record, are still incompetent under the first clause of the second section of the statute quoted, relating to evidence and depositions. Interest or want of interest of parties, directly and indirectly as existing at common law are recognized by the final authori- ties of this State.'^ The disqualifying interest at common law, 34 — Law 1867, p. 183, section 2. Vol. 5. pp. 254-255, and cases cited; Section 2, chapter 51, "Evidence Kurd's R. S. of 111., 1905, pp. 1034- and Depositions." Starr & Curtis 1035. Annotated Statute of Illinois, with 35 — King v. Worthington, 70 111. Jones & Addington's Supplements 114; Kent v. Mason, 79 111. 540; thereto, Vol. 2, pp. 1822 to 1834 Remann v. Buckmaster, 85 111. inclusive, and cases cited; Vol. 405; McClure v. Otrich, 118 111. 4, pp. 605 to 608, and cases cited; 325. EVIDENCE AND DEPOSITIONS, UNDER STATUTE. 585 was some legal, certain and immediate interest.^^ It was suffi- cient if the interest exists, and it matters not whether the witness has knowledge of it or no^.^^ The test being, will the Avitness either gain or lose by the operation and effect of the judgment ; or will the record be evidence for or against him in another siction.^^ His interest, however, must be in favor of the party calling him as a witness; if adverse to such, or if his evidence was considered as evenly balanced he was a competent witness.^^ The clear distinction of the rule in this regard, as between courts of law and equity relating to the competency or incompetency of parties to the record as witnesses, will be found in the case of Dodgson v. Henderson. Where the defendant is competent to testify against some, but not all the complainants, his evidence will be con- sidered against the complainant as to whom he is competent.^^ Where it appears the witness' interest is equally balanced he is competent.'*^ And to the same effect defining common law wit- ness as though no statutory act had been passed as to their qualifications; under the statute itself, that is, the excep- tions in the statute, adds to the list witnesses that are made competent.'*- The authorities being numerous, we hereafter distinguish the witnesses by the authorities holding them in- competent and competent to testify in the particular case where the issue is raised. 660. Incompetent witnesses. The cases under this head are very numerous, depending largely upon the facts developed in 36— €ombs v. Bradshaw, 6 111. 121; Hurlbut v. Meeker, 104 HI. App. 121; 1 Greenleaf on Evi- 542; Ire re Bonse, 18 111. App. 438; deuce, 386, 387, 388, 389. Sconse v. Henderson, 102 111. 376. 37 — Flint V. McClung, 4 Gilm. 40 — Dodson v. Henderson, 113 (111.) 569. 111. 363; Weingartner v. Pabst, 115 38 — New England Ins. Co. v. 111. 413; Meister v. Zimmermann, Wetmore, 32 111. 246; McClure v. 7 111. App. 160. Otrich, 118 W. 325. 41— Sconse v. Henderson, 102 39— Stokes v. Kane, 4 Scam. Ill, 376; Dodgson v. Henderson, (III.) 16; Brooks v. McKlnney, 4 113 111. 363. Scam. (111.) 312; Bell v. Farrar, 41 42— Bradshaw v. Combs, 102 111. 111. 400; Brown v. Hurd, 41 111. 428; Ailing v. Brazee, 27 111. App. 5^8. 586 THE LAW OF ESTATES. each particular case. It may be safely said the statute quoted aforesaid, allowing a party to be a witness, is seemingly broad yet much restricted in its application. It is said in the case of Boynton v. Phelps :^^ "The second section of the act of 1867 clearly contemplates that the parties to a suit, when one of them is offered as a witness against the other, shall occupy equal ground ; that both shaU be present in the flesh, or have the power to be present. If it were not so, the greatest injustice would be the result. A swift and willing living witness would have the whole case in his own power, and a door to perjury would be open, so wide and so inviting as to require great moral firm- ness to decline an entrance into it. It would be a temptation very many would not be able to resist." While both parties to a transaction are living they are upon a perfect equality, and can each testify. When one is dead the other is not per- mitted to give evidence, and thus take advantage of the heirs of the deceased, who are wholly ignorant of the facts.*^ In the application of this general statutory rule of justice to the living and dead, the various cases, as they develop certain facts, become special cases in point, where the incompetency of wit- nesses to testify to the particular matters in controversy appear in each case. Where a person, long after the execution and delivery of a deed for land, makes a second conveyance of the same premises to another, who files a biU against the heirs of the prior grantee to have the first deed set aside, on the ground it was delivered on conditions which were never performed, and the bill is brought for the mutual benefit of the second grantee and the grantor, the latter was held not to be a compe- tent witness for the complainant against the heirs of the prior grantee, to prove the grounds on which the first deed sought to be avoided.^^ And it is held in a suit by an executor, upon 43—52 111., page 219. Pyle v. Oustatt. 92 111. 215; Lang- 44— Merrill v. Atkins, 59 111. 20; ley v. Dodsworth, 81 111. 86; Gal- Fisher V. Fisher, 54 111. 235; Ma- braith v. McLain, 84 111. 379; Mc- honey v. Mahoney, 65 111. 406; Cann v. Atherton, 106 111. 33; Alexander v. Hoffman, 70 111. 115; Plain v. Roth, 107 111. 588. Ruckman v. Alwood, 71 111. 155; 45 — McCann v. Atherton, 106 IlL 33. EVIDENCE AND DEPOSITIONS, UNDER STATUTE. 587 a promissory note to the testator, that the principal maker is not a competent witness for a surety, to prove a contract with the testator for extending the time of payment, even though his default had been taken.^*' It appears that a plaintiff de- scribed himself as an administrator; and the facta established, that the plaintiff could maintain the suit in his own name, and therefore it was unnecessary for him to describe himself as administrator. And under such state of facts, it was held, the plaintiff could not cut off the defendant from being a witness.*'^ Where a bill in chancery was filed by a married woman, against the heirs and administrator of a deceased party to have a deed, executed by her and her husband to the intestate, set aside for fraud, etc., it was held the complainant and her husband were both incompetent witnesses to prove the facts alleged in her bill.^8 Where a bill for specific performance was filed, the agent of the vendor is not a competent witness, after the ven- dee's death, as against his widow and heirs, to testify that a payment, indorsed by him upon the contract, was made by mistake, and that it was not, in fact made.*** A party is not a competent witness against an opponent who is defending as an heir in a suit growing out of a transaction with his ancestor.^* In equity to enforce a resulting trust, against an administrator, and the heirs of an estate, it was held: The complainant was not competent to testify, in his own behalf, as to transactions and conversations with the deceased in his lifetime.^^ In a suit for partition and assignment of dower by heir of intestate against the widow of such intestate, it was held: That she was 46— Langley v. Dodsworth, 81 Battell, 83 111. 320-321; Galbraith 111. 86; Dodgson v. Henderson, 113 v. McLain, 84 111. 379; Ferbrache 111., 363. V. Ferbrache, 110 111. 210; Dyer 47— Roberts v. Pierce, 79 111. 378. v. Hopkins, 112 111. 168; Show 48— Crane v. Crane, 81 111. 166. v. Schoonover, 130 111. 448. 49 — 1 Greenleaf on Evidence, 50 — Ebert v. Cording, 116 111. sections 417, 394 to 397; Frink v. 216; Powell v. Powell, 114 111. People, 43 111. 27; Walters v. 334; Holderman v. Gray, 130 111. Witherell, 43 111. 388; Chicago, 442. Rock Island & Pacific R. R. Co. 51— Kelsey v. Snyder, 118 111. V. Welch, 24 111. 31; Bruner v. 544. 588 THE LAW OF ESTATES. not competent to prove advances by herself to the intestate, and of existence of lien therefore.^^ The deposition of a complainant, taken after the death of a defendant, in a suit in equity t« set aside a deed, and for rent, is incompetent, and should not be read as evidence against such deceased defendant heir.^^ A daughter of a deceased person claiming property under contract with the mother during her lifetime, is an incompetent witness under bill filed by the other heirs to subject such property to distribution,^^ 661. Incompetent witnesses continued. Where A trans- ferred his bond for a deed to B, without consideration, thereby making the latter his trustee, and procured B to make payment of the purchase money, and had the vendor convey the prop- erty to B, who died, having devised all his estate to C, and the executor of C filed a bill against A and his wife to fore- close the deed as a mortgage, it was held: That A was not a competent witness in his own behalf as to any transaction be- tween himself and B ; nor could he testify in his own interest when called by his co-defendant, his wife.^^ Where application Iv^as made to the county court to require an executor to disclose assets, it was held, that the executor was not a competent wit- ness as to fact occurring before the death of the deceased.^® And in equity, to restrain an administrator from paying over certain money to one of the heirs of the deceased, who claimed under an alleged parol contract between herself and husband and decedent and her mother, made shortly before the mother's death, it was held, that the husband of the claimant was an incompetent witness, to prove the transaction.^^ In an action by an administrator on a note, where it was sought to prove a contract between the defendant and the deceased for board- 52— Barnard v. Barnard, 119 111. 55— Stewart v. Fellows, 128 111. 92. 480. 53— Dean v. Long, 122 111. 447. 56— Booth v. Tabbernor, 23 111. 54— Way V. Harriman, 126 111. App. 173. 132. 57 — Harriman v. Sampson, 23 111. App. 159. EVIDENCE AND DEPOSITIONS, UNDER STATUTE. 589 ing of the decedent 's parents, it was held : The wife of the de- fendant was not competent to testify as to such fact.^^ Com- plainants in a foreclosure suit against heirs of a mortgagor cannot testify to the amount due thereunder.^^ A divorced wife of a deceased party, who filed her bill of review to set aside the decree which divorced her, was held, not a competent wit- ness where the defendants were the administrator, widow and heir of such deceased husband.^*^ A donee is incompetent as a witness, where complainants sue as heirs.^^ An executor, is incompetent to testify against contesting heirs, where his in- terest lies in sustaining the will in question.^^ ^ grantee of an ancestor is not a competent witness in suit by him as such.^^ So also, one seeking to establish the fact of heirship to deceased, is not a competent witness in a case where adverse parties de- fend as heirs of such deceased.''^ The statute in this regard was intended to protect the estates of deceased persons from the assaults of strangers, and relates to proceedings wherein the decision sought by the party so testifying would tend to reduce or impair the estate, and does not relate to the relative rights of heirs or devisees as to the distribution of an estate in proceedings by which the estate itself is in no event to be reduced or impaired.^*^ A stockholder of a corporation is not a competent witness in a suit by a corporation against the repre- ss— Gifford V. Wilkins, 24 111. 111. 372. And see also the fol- App. 367. lowing cases where witnesses were 59 — Reed v. Kidder, 70 111. App. held competent or incompetent 500. on some issue raised in the case. 60— Maher v. Trust Co., 95 111. Blanchard v, Blanchard. 191 111. App. 375. 453; Fletcher v. Shepherd, 174 111. 61— Sayles v. Christie, 187 111. 268; Roberts v. Woods, 82 111. App. 442. 648; Same v. Same, 185 111. 489; 62— Bardell v. Brady, 172 111. Ramsey v. Nichols, 73 111. App. 424; Anderson v. Anderson, 191 651; Pearce v. Pearce, 184 III. 111. 101; Fleming v. Mills, 182 111. 289; Goff v. Ins. Co., 92 111. App. 469. 211; Yokem v. Hicks, 93 111. App. 63— Leavitt v. Leavitt, 179 111. 670; Russell v. Happ, 76 111. App. 89. 419. 64 — Lawrence v. Lawrence, 164 65 — Pigg v. Carroll, 89 111. 205; Fleming v. Mills, 182 111. 469. 590 THE LAW OF ESTATES. sentatives of a deceased party .^^ An adverse party must sue in a representative capacity to render opposite party incom- petent.^^ And so it is held, the question, whether a witness has, or has not, a disqualifying interest, in a particular case, is to be determined by ascertaining, whether he would gain or lose by a decree setting aside the will.^^ The interest of a party may lie solely in his liability for costs, in event of defeat.^^ 662. When party competent to testify in his own behalf — competent witnesses generally. A suit against grantees of a deceased person, which is not defended by the executor, heirs, legatees or devisees of the deceased, is not one in which the plaintiff is prohibited by the statute from testifying in his own behalf as to personal transactions with the deceased.'^^ A plain- tiff is competent to testify in his own behalf, where defendant is not defending in any pecuniary capacity.'''^ A claimant, who is prosecuting a claim against the estate of a deceased person, is a competent witness in his own behalf, in relation to what was done and said at a settlement between him and the executor of the estate, about which a witness produced by the executor has testified. It is a general rule relating to conversations, that when one party introduces a part, the other may call for and have the entire conversation, so far as it relates to the subject matter in dispute.'^ ^ The administrator is a competent witness for the defense, in a suit against the estate represented by him, to testify, what he knew of the case before and after he became administrator did learn.'^s One heir is a competent witness against another in partition proceedings, where one heir claims the entire title, on the ground that the ancestor held the legal 66— Albers Commission Co. v. 69— Smith v. Smith, 168 111. 495. Sessel, 193 111. 155; Christian- 70— Goelz v. Goelz, 157 111. 33; sen V. Dunham Towing and Gage v. Eddy, 179 111. 496. Wrecking Co., 75 111. App. 274. 71 — Fireman's Ins. Co. v. Peck, 67— McGrew v. McGrew, 93 111. 126 111. 493. App. 82. 72— Strauther v. Mohler, 80 111. 68— Campbell v. Campbell, 130 23. 111. 466. 73— Steel, Adm., v. Clark, Adm., 77 111. 475. EVIDENCE AND DEPOSITIONS, UNDER STATUTE. 591 title in trust for him, and the other defendant disclaiming any interest, the latter will be a competent witness for his co-de- fendant, and against the petitioner, both at common law and under the statute.''* In equity, the principal on a promissory note is a competent witness in a suit by the surety against the administrator of the payee, to enjoin the collection of a note, on behalf of the surety, to prove a valid contract by the payee extending the time of payment to the principal without consent of the surety J ^ A widow, filed a bill in equity, for herself and heirs to establish a trust for the estate. Held : She was a com- petent witness for herself and the heirs as to all matters affect- ing the transaction of which she has personal knowledge. But the defendant in such suit, is not a competent witness, as he is directly interested in the result of the suit as sole defendant; the adverse parties suing as heirs at law of the deceased, defend- ant was therefore incompetent to testify to anything but mat- ters falling within the exceptions to section 2, chapter 51, Ke- vised Statutes.'^® A mere scrivener employed by deceased to draw a note and mortgage, is not the agent of the deceased, and his testimony is competent concerning transaction between the widow and her deceased husband, as to what was said about an ante-nuptial contract between the latter two.'^'' In a case for specific performance, where special conditions and circumstances appear in the record, a daughter of testator was held competent and permitted to testify, as such was not entitled to the land mentioned in the will and, to prove the contract upon which the relief under bill for specific performance was sought, such having no interest in the result. The rule as laid down, being: "The true test of the competency of a witness, 74 — Scheerer v. Scheerer, 109 111. 363; Davis v. People, 1 Gilm. 111. 11; Smith v. West, 103 111. (111.) 409; Grossman v. Wohllen- 332; Kershaw v. Kershaw, 102 111. hen, 90 111. 537. 307; Pigg V. Carroll, 89 111. 205; 76— As to statute cited see ante Long V. Long, 19 111. App. 383; 658 and notes; Powell v. Powell, Treleaven v. Dixon, 119 111. 548. 114 III. 334, 75 — Bradshaw v. Combs, 102 111. 77 — Spencer v. Boardman, 118 428; Dodgson v. Henderson, 113 111. 553. 592 THE LAW OF ESTATES. when challenged on the ground of interest, is, whether he will gain or lose by the direct legal operation and effect of the judg- ment in the case in which he is called to testify, or whether the record will be evidence for or against him.'^^ In a cause of action which accrued more than five years before the bring- ing of the suit, at which time the claimant first learned he had a right of action against decedent's estate, he was held to be competent to testify to facts occurring after the death of the intestate having reference to his acquiring knowledge of his rights.'^ So a widow was held a competent witness to prove that after her husband's death, she found a deed to him among his papers, as tending to show a delivery to him, that being "a fact occurring after the death of such deceased person. "^"^ 663. Competent witnesses continued. The defendant is a competent witness in a suit by a widow for causing her hus- band's death by selling him intoxicating liquors.si A ward is a competent witness, in an action against sureties on guardian's bond, to testify whether deceased guardian ever paid any of the money due from him, and whether the guardian was ever con- stituted agent to handle the same.'^^ The maker of a note was held to be a competent witness, as to conversations or transac- tions with him testified to by agents at plaintiff's instance, the agents of the payee having a direct interest in the result of the suit.s^ An executor under a will who is also a devisee of certain lands in trust may disclaim his interest in the trust property and thus become a competent witness-^'* A right not claimed by inheritance, sought to be enforced by an heir, as to facts oc- curring during the minority of the plaintiff, does not exclude the evidence of an adverse party to the suit.^^ In an action 78— McClure v. Otrich, 118 111. 83— Butz v. Schwartz, 32 III. 320. App. 156; English v. Landon, 181 79— Vigers v. Bannon, 118 111. 111. 618. 334. 84 — Campbell v. Campbell, 130 80— Griffin V. Griffin, 125 111. 430. 111. 466; Smith v. Smith, 168 111. 81— Regent v. Bell, 77 111. 593. 493. 82_people v. Borders, 31 111. 85— Seago v. People, 21 111. App. App. 426. 283. EVIDENCE AND DEPOSITIONS, UNDER STATUTE. 593 by the assignee of a certificate of stock against a corporation to recover damages, for the wrongful refusal of the defendant to allow a transfer of the stock on its books; it was held: The death of the original holder of such certificate does not render the plaintiff incompetent as a witness,^^ An interest consisting of inchoate dower right, does not render witness incompetent.^'' The interest of a party will be determined by matters of sub- stance rather than by those of form.^^ Where one sues or de- fends as a grantee of executor, the party in interest is a com- petent witness.^^ A daughter of a complainant by a former husband has not such an interest in the event of a suit seeking to establish a trust in favor of her mother against the heirs of her deceased step-father, as to render her incompetent under the statute.^^ The widow of the deceased is a competent witness in a suit between legatees and the executor, the result of which will not affect her financially, and where it appears she has no interest.^i The son of a grantee does not defend as heir in a suit to set aside the deed and for partition, so as to preclude the complainants from testifying against him under section 2 of the Evidence Act, where the validity of the deed as well as the complainant's title rests upon a will under which they all claim.92 Immaterial evidence may be competent by virtue of the other party to the cause having introduced such, evidence as to render it essential by way of contradiction-^^ 664. Administrators as witnesses. Independent of his of- fice as administrator, if he has no interest in the subject-matter of the litigation and his testimony does not relate to matters growing out of his administration, but to affairs occurring be- 86— Fireman's Ins. Co. v. Peck, 91— Tanton v. Keller, 167 III. 27 111. App. 91. 144. 87— Pain v. Farson, 179 111. 196. 92— Fleming v. Mills, 182 111. 88— Bardell v. Brady, 172 111. 469; Pigg v. Carroll, 89 111. 205; 424. Mueller v. Rebhan, 94 111. 142. 89— Gage v. Eddy, 179 111. 495. 93— Matthews v. Granger, 196 90— Boyd V. Boyd, 163 111. 614. 111. 168; Illinois Life Assn. v. V/ells, 200 III. 451. 38 594 THE LAW OF ESTATES. tween him and third persons, parties litigant should not be de- prived of his testimony simply by reason of his accepting the office of administrator.'''^ Where an administratrix is suing to recover money in the hands of an officer of the court which she claims as an asset of her intestate, such contestant is the adverse party within the meaning of the statute, and the ad- ministratrix is a competent witness.^^ An alleged creditor of a deceased person, who has been appointed administrator of such person, under the statute authorizing the appointment of cred- itors under certain circumstances, is not competent to testify as to transactions between himself and the deceased in a proceed- ing for his removal commenced by an heir.^^ Where an admin- istrator testifies as to admissions of defendant during decedent's life-time, the defendant may testify as to the same.'''^ Where certain evidence was proffered, such was held admissible.^^ 665. Admissions and declarations. As a general rule, ad- missions should be made in the presence of the parties sought to be bound thereby; and, by some one legally capable of mak- ing the same. Admissions if made by a child of tender years, should be received more cautiously on account of age, than the admissions of an adult.^^ The admission or declaration of a grantor after he has parted with all his interest in the laud the subject of controversy, will not be received in evidence to defeat the title of his innocent grantee.^ If the relation of law- ful marriage has actually been created, the subsequent admis- sions of the wife to the contrary, no matter if solemnly and deliberately made, can have no effect to dissolve the marriage tie or relieve the other party from the obligations and duties 94— Yokem v. Hicks, 93 111. App. 97— Penn v. Oglesby, 89 111. 110. 670. 98— Brunner v. Battell, 83 111. 95— Shea v. Doyle, 65 111. App. 317; Plain v. Roth, 107 111. 588. 475; 111. Cent. R. R. Co. v. Rear- 99— Chicago City Ry. Co. v. don, Adm., 157 111. 378. Tuohy, 196 111. 430. 96 — Henderson v. Treadway, 69 1 — Holton v. Dunker, 198 IlL 111. App. 357. 412. EVIDENCE AND DEPOSITIONS, UNDER STATUTE. 595 of a husband and father.^ Where the answer to a bill in chan- cery set forth certain admissions claimed to be binding the court held, such answer could not fairly be construed to admit charges and expenses beyond those actually covered by the li- cense contract.^ The admissions by an agent made while acting as attorney and agent in conducting the affairs of his principal, relating to a transaction then pending and considered part of the res gestae were held competent.'* Where admissions were made by an attorney for the appellants in open court in con- demnation proceedings, in effect, conceding, that the appellee company had power and capacity to exercise the right of emi- nent domain, and voluntarily and without objection entered upon the hearing before the jury of the issues as to the amount of damages to which appellants were entitled, it was held : Ap- pellants could not be heard to insist the appellee company had not the right and power to acquire property by the process of condemnation.^ And where settlement \\dth creditors had been made and deed of trust and notes executed in pursuance of the same ; and, afterward in a litigated case, the deed and notes were offered in evidence and objection was made thereto, it was said: "We are unable to see why the evidence was not com- petent on the theory of the defense, which was, that all the claims held by appellant and others against the defendant were adjusted by the execution of the trust deed and notes. In sup- port of that contention, defendant clearly had the right to prove the arrangement and show what was done by way of carrying it out, — that is proof of compliance on its part."^ The duly authenticated transcript of the proceedings and decree contain- ing admissions made in a contested litigation involving the same subject-matter as the case at bar, and between the same parties, 2 — Hutchinson v. Hutchinson, 5 — Sexton v. Union Stock Yards 196 111. 432. Co., 200 111. 248, and cases cited 3 — Bates Machine Co. v. Cook- in the opinion, son, 202 111. 256. 6 — Iroquois Furnace Co. v. 4— Hoffman v. Chicago Title & Hardware Co., 201 111. 299. Trust Co., 198 111. 456. 596 THE LAW OF ESTATES. is entitled to full faith and credit, and is properly admitted in evidence. The admission of a fact by a party to a suit, is com- petent evidence, no matter how made; and where the statement or declaration of a party is made in a bill in chancery, the bill is competent evidence to be considered by the jury, who are to determine the weight to be given to the evidence.'^ A corporation is bound by a contract made by its duly authorized agents, its directors, with full knowledge of what they were do- ing, however fraudulent the contract may be in its operation, after it has been executed by the parties to it.^ Where the agent of an insurance company is intrusted with checks and receipts for the purpose of settling a death claim, the agent's representations, declarations and admissions in closing up the transactions, if made at the time and constituting part of the res gestae, are binding upon the company.^ 666. Agent — direct and implied. The burden of proving the express authority of an agent, or such authority necessarily implied from his employment as an agent, and a part of the duty of the agency, which must be exercised by him as an agent to be effective at all, rests upon the party relying on the agency express or implied. He who asserts agency and authority as such must prove it.^^ The able opinion in this case cited in this note is by Chief Justice Magruder, who learnedly and exhaustively reviews the principal text writers on the subject of agency relating to the case at bar. We therefore give at some length the points decided, and the authorities reviewed. Au- 7 — Seymour v. Richardson Fuel- tional Bank, 126 111. 584; Republic ing Co., 103 111. App. 625; Litch Life Ins. Co. v. Swigert, 135 111. V. Clinch. 136 111. 410, 423, 425; 150; Hinkley v. Reed, 182 111. Wadsworth V. Duncan, 164 111. 360- 440; Weill v. Zache, 92 111. App. 366; Smith v. Henline, 174 111. 296; Ross v. Saylor, 104 111. App. 200; The "Benefactor," 103 U. S. 19. 239; The "Puritan," 94 Fed. Rep. 9— Hartford Life Ins. Co. v. 365. Sherman, 223 111. 329. 8— McNulta V. Corn Belt Bank, 10— Jackson Paper Co. v. Com- 164 111. 451 ; Darst v. Gale, 83 111. mercial National Bank, 199 111. 151. 137; Hanford Cil Co. v. First Na- EVIDENCE AND DEPOSITIONS, UNDER STATUTE. 597 thority of an agent to endorse commercial paper, can only be implied where the agent would be unable to perform the duties of his agency without the exercise of such authority. The au- thority to collect debts is not autliority to endorse hills. An agency to collect bills and receipt therefor carries no implica- tion of authority to endorse negotiable paper. Party relying on implied authority must have knowledge of the acts. While authority to endorse negotiable paper may be presumed from acts of recognition in former instances, yet those acts must be known to the party setting them up, and if he accepts a check shown upon its face to be endorsed by an agent, he must prove that the facts giving color of authority to the agent were known to him. What acts not sufficient to raise inference of authority to endorse checks. That a party accepting a check endorsed by an agent had seen the agent at the payee's mill engaged in man- aging its business, had seen him opening mail, giving orders to the men and countersigning checks drawn by the treasurer of the company to pay for material purchased by the agent, does not justify the implication that he had authority to endorse checks. Effect of possession of check. That the superintendent of a manufacturing company has a check in his possession given in payment for goods purchased of such company by a cus- tomer, does not authorize any one to purchase or cash the same for him upon his endorsement of the company's name thereon by himself, as superintendent. Effect of act of certifying check. By certifying a check a bank assumes the duty to pay the check only to the payee or upon the payee's genuine endorsement, and having direct notice of the endorser's agency from his signa- ture as the payee's superintendent, it is bound to take notice of the limitation of his authority. Burden of showing stranger's authority to endorse check is upon party asserting it. The bur- den of showing the authority of a stranger to a check to endorse the same for the payee is upon the drawee, if he would escape liability to pay it over again to the payee after paying it upon an endorsement showing upon its face, that it was not made by 598 THE LAW OF ESTATES. the payee.** The conversations of an agent, where it is estab- lished he is acting within the scope of his autliority, are held competent.* 2 Presumptions relating to agents of corporations are the same as relate to agents of individuals. Authority of corporate officers, is limited to the business of the corporation by ail officer not foreign to the corporate powers.*^ 687. Written instruments. Written proofs, or evidence, are (1) Records; (2) Ancient deed of thirty years' standing which prove themselves; (3) Modern deeds; (4) Other writings that must be attested and verified by parol evidence of witnesses. The one general rule that runs through all the doctrine of trials is this, that the best evidence the nature of the case will admit of shall always be required, if possible to be had; but if not possible, then the best evidence that can be had shall be al- lowed.** Written documents are considered primary and the 11 — The following cases support the opinion in Jackson Paper Co. V. Commercial National Bank, cited as note (10): Parsons on Con- tracts, Vol. 1, 6th ed., p. 62; Mechem on Agency, sees. 389-392; Daniel on Negotiable Instruments, Vol. 1, 4th ed., sees. 292, 293; 1 Am. & Eng. Ency. of Law, 2d ed., p. 1002; Boord v. M. Ferst's Sons & Co., 39 Fla. 381; Gregory v. Loose, 19 Wash. 599; Dodge v. National Exchange Bank, 30 Ohio St. 1; Doubleday v. Kress, 50 N. Y. 410; Smith V. Co-operative Dress Assn., 12 Daly 304; Atkinson v. St. Croix Manf. Co., 24 Me. 176; Middlesex County Bank v. Hirsch Bros., 24 N. Y. St. 297; Graham v. United States Savings Inst, 46 Mo. 186; Smith V. Gibson, 6 Blackf. 370; Railway Equipment and P. Co. v. Bank, 82 Hun. 9; New York Iron Mine v. Bank of Negaunee, 39 Mich. 644; Vanbibber v. Bank of Louisiana, 14 La. Ann. 486; Jack- son V. Bank, 92 Tenn, 154; Raw- son V. Curtiss, 19 111. 456; Maxey V. Heckethorn, 44 111.437; St. John V. Redmond, 9 Porter, 432; Cash v. Taylor, 8 L. J. (O. S.) 262; Chitty on Bills, 13th Am. ed., pp. 41, 42; Gage Hotel Co. v. Union National Bank, 171 111. 531; Metropolitan National Bank v. Jones, 137 111. 634; Chicago Electric Light Rent- ing Co. V. Hutchinson, 25 111. App. 476; Commercial National Bank v. Lincoln Fuel Co., 67 111. App. 166; Beattie v. National Bank of Illi- nois, 174 111. 571; Reynolds v. Ferree, 86 111. 570; Schmidt v. Shaver, 196 111. 115; Currie v. Syn- dicate, 104 111. 168. 12— Pardridge v. Cutler, 104 111. App. 104. 13 — National Bank v. Nichols Shepard Co. 223 111. 41. 14 — 2 Cooley's Blackstone, p. 367; 1 Greenleaf on Evidence, sees. 21, 142, 145, 570; 1 Stark on Evi- dence, sees. 93, 523; Evidence by EVIDENCE AND DEPOSITIONS, UNDER STATUTE. 599 best evidence; such afford the greatest certainty of the fact in question. The instrument in writing being always regarded by the courts as the primary or best possible evidence of its ex- istence and contents. If the execution of an instrument is to be proved, the primary evidence is the testimony of the sub- scribing witness, if there be one. Until it is shown that the pro- duction of the primary evidence is out of the party's power, no other proof of the fact is in general admitted. All evidence falling short of this degree is termed "secondary." The dis- tinction refers to the "quality" and not to the strength of the proof. 1^ "Where a person is proved to have destroyed any writ- ten instrument, ' * a presumption will arise, that, if the truth had appeared, it would have been against his interest, and his con- duct is attributable to his knowledge of the circumstances. The general rule is: Omnia praesumuntur contra spoliatorem."^^ An altered instrument should not be admitted as evidence until it is shown that all the material alterations or interlineations were made before its execution.^ ''' Where alterations were proved to have been made to the entries in a family Bible, such was held, not to establish the fact of heirship, where one claimed to be an adopted daughter under such altered entry, changing the word "only" to "adopted" and where part of the writing was missing. The court holding in such ease, a child taken by a husband and wife and raised and treated by them as their daughter, but not legally adopted by them, cannot inherit from them as heir.i^ The law charges a party with notice of the con- tents of a letter, which has been received by him.^^ And a let- ter press copy, where the foundation is properly laid and made Cowen, Hill and Edwards, Vol. 2, 17— Landt v. McCullough, 103 111. gees. 475, 480. App. 670, and cases cited in opin- 15 — 1 Greenleaf on Evidence, ion. sec. 84 ; 1 Stark on Evidence, sees. 18 — Crumley v. Worden, 201 111. 641, 649. 115. 16 — Winchell v. Edwards, 57 111. 19 — Michigan Leather Co. v. Fo- 41; Downing v. Plate. 90 111. 268; ver, 104 111. App. 269; Central Anderson v. Irwin, 101 111. 411; Lumber Co. v. Keller, 201 111. 508; Tantor v. Keeler, 167 111. 144. Baker v. Baker, 202 111. 612. 600 THE LAW OF ESTATES. for its introduction is admissible. ^° As to the use of memoranda and its effect when produced at the request of a party who cross-examines as to particular interlineations contained there- in. 21 Contents of minute book of a corporation must be proved by such book, or a duly certified copy thereof, notwithstanding such book is without the State of Illinois.22 Photographs are admissible. 23 But such are incompetent when taken a long time after the accident.^* 668. Book accounts. The statute relating to "evidence and depositions," provides: "Where in any civil action, suit or proceeding, the claim or defense is founded on a book account, any party or interested person may testify to his account book, and the items therein contained; that the same is a book of original entries, and that the entries therein made were made by himself, and are true and just; or that the same were made by a deceased person, or by a disinterested person, a non-resi- dent of the State at the time of the trial, and were made by such deceased or non-resident person in the usual course of trade, and of his duty or employment to the party so testify- ing; and thereupon the said account book and entries shall be admitted as evidence in the cause. "25 Before this statute, books of account were admissible only, after proof of person keeping them had been made.^^ Where a party was held not to have brought himself within the requirements of the statute and where account books were held incompetent.^^ The common 20 — Union Surety Co. v. Tenny, dence and Deposition." Starr & 200 111. 352. Curtis Annotated Statutes of lUi- 21 — ^Railway Co. v. Story, 104 nois, with Jones & Addington's 111. App. 140. Supplements thereto. Vol. 2, p. 22— Central Electric Co. v. 1834; Vol. 4, p. 608; Vol. 5, p. 255, Sprague Electric Co., 120 Fed. Rep. and cases cited under section of 928. statute; Kurd's R. S. of 111., 1905, 23— City of Chicago v. Vesey, 105 p. 1035. 111. App. 195; Railway Co. v. Prast, 26— Kirby v. Watt, 19 111. 393; 101 111. App. 168. Dodson v. Sears, 25 111. 513; but 24 — Railway Co. v. Corson, 198 see Ruggles v. Gratton, 50 111. 412. 111. 103. 27— Bradley v. Gardner, 87 111. 25— Section 3. chapter 51, "Evi- App. 405; McDavid v. Ellis, 78 111. EVIDENCE AND DEPOSITIONS, UNDER STATUTE. 601 law is not abrogated, but enlarged under this statute.^s "Where the witness states, that the accounts are correct, it is sufficient.^^ Where book of accounts between parties, were made by one party in the presence of the other, they are competent to show the state of the account.^'^ If person who made entries in book account has no personal knowledge of their correctness, the ac- count must be proved by persons furnishing the items in the book, or by other satisfactory evidence.^^ And this rule is ap- plied to depositions on motion to strike out.32 The contents of book accounts cannot be stated; if such are competent, the book itself should be received as evidence.^^ The entries in book account of **cash" or ** check" charged, without connecting such charge with the particular transaction, does not indicate the charge represented the loan of that much money .^^ Where book entitled "Record of Sales" contained no charges, it was held inadmissible as original evidence.^^ g^^ inventories proved to have been correctly made from original notations that were subsequently lost or destroyed, were held to be competent.^^ And also entries in book made from time slips, the day after the work was done, were held competent evidence, and admis- sible.37 669. Compulsory production of books for inspection. The statute giving a right to the inspection of books in certain cases App. 383; Chisolm v. Beaman Ma- 538; Redlich v. Bauerlee, 98 111. chine Co., 160 III. 113; Marshall v. 134; Lowenthal v. McCormick, 101 Coleman, 187 111. 58. 111. 143. 28— Weigle v. Brautigaam, 74 111. 32— Boyd v. Yerkes, 25 111. App. App. 291; Bank v. Elledge, 99 111. 527. App. 308; BDOks v. Funk, 85 111. 33— Schotte v. Puscheck, 79 111. App. 633. App. 53; Huddleson v. McCollum, 29— Presbyterian Church v. Em- 103 111. App. 409. merson, 66 111. 269; Ailing v. 34— Rothchild v. Sessel, 103 III. Brazee, 27 111. App. 595. App. 283. 30— McDavid v. Ellis, 78 111. 35— €airnes v. Hunt, 78 111. App. App. 383. 422. 31 — Stettauer v. White, 98 111. 36 — Railroad Co. v. American 72; Sexton v. Brown, 36 111. App. Strawboard Co., 190 111. 270. 281; Hovey v. Thompson, 37 111. 37 — Chisolm v. Beaman Ma- chine Co., 160 111. 113. 602 THE LAW OF ESTATES. and under certain conditions, upon application to the court, vest in such court a discretion and a power, to make such order with restriction such as the court may see fit to direct, within such exercise of legal discretion. And in a case where an order to inspect books and papers was granted, the court in its order provided for the sealing up of parts of the items in the books, considered by the court, in the exercise of its discretion irrele- vant to the issue in the cause before it; and this exercise of dis- cretion was sustained by the Appellate Court.^^ The memory of a witness may be refreshed by a party testifying for himself by referring to copies of entries in his books of account ; but he will not be permitted to read from such copies.^^ Where books of account are kept by a party, or under his supervision, en- tries made therein are competent as admissions of the matter stated.40 670. Surviving partner — contract with deceased agent. The act relating to evidence, provides: "In any action, suit or proceeding by or against any surviving partner or partners, joint contractor or joint contractors, no adverse party or per- son adversely interested in the event thereof, shall, by virtue of section 1 of this act, be rendered a competent witness to tes- tify to any admission or conversation by any deceased partner or joint contractor, unless some one or more of the surviving partners or joint contractors were also present at the time of such admission or conversation; and in every action, suit or proceeding a party to the same who has contracted with an agent of the adverse party — the agent having since died — shall not be a competent witness as to any admission or conversation between himself and such agent unless such admission or con- versation with the said deceased agent was had or made in the presence of a surviving agent or agents of such adverse party, and then only except where the conditions are such that under 38 — Pynchon v. Day, 18 111. App. 40 — Borrower's and Investor's 147. Building Association v. Cochrane 39— Bonnett v Glattfeldt, 120 111. 103 111. App. 34. 166. EVIDENCE AND DEPOSITIONS, UNDER STATUTE. 603 the provisions of section 2 and 3 of this act he would have been permitted to testify if the deceased person had been a princi- pal and not an agent. "^^ This section of the statute is con- strued and applied in the case of Rothstein v. Siegel, Cooper & Co.,'^^ where it is held: That since the enactment of this section, in all suits or proceedings, a party who has contracted with an agent of the adverse party, and such agent having since died, is not a competent witness to any admission or con- versation between himself and such agent, unless such admis- sion or conversation with the said deceased agent, was had or made in the presence of a surviving agent or agents of such adverse party. It is also held: the holder of a policy of insur- ance, is not a competent witness, as to any conversation with a deceased agent of the company; but he is a competent witness to testify to the situation of the contents of a building destroyed by fire at the time the insurance was effected and the loss sus- tained; it was error to exclude testimony for such purpose. The section of the statute applies to actions on penal bonds as well as contracts.'*^ And in an action of replevin, to recover goods from a firm, where the surviving partner of another firm pre- viously owned the goods sought to be replevined, was a member at the time suit was brought of such firm, it was held, the plain- tiff was not competent as a witness to state admissions by the deceased member of such former firm, touching an alleged sale to the plaintiff.44 671. Husband — wife. ''No husband or wife shall, by virtue of section 1 of this act, be rendered competent to testify for or against each other as to any transaction or conversation occur- 41 — Section 4, chapter 51, "Evi- cited under section of statute; dence and Depositions," as amend- Kurd's R. S. of III., 1905, p. 1035. ed by law of 1S99, p. 216. Ap- 42—102 111. App. 601; Zeigler v. proved April 24, 1899; in force Clinton Mut. Fire Ins. Co., 84 II?. ' July 1, 1889. Starr & Curtis Anno- App. 444. tated Statutes of Illinois, with 43— Henry v. Tiffany, 5 111. App. Jones & Addington's Supplements 548. thereto, Vol. 2, p. 1836; Vol. 4, pp. 44— Foster v. Hart, 29 111. App. 608, 609; Vol. 5, p. 255, and cases 260. 604 THE LAW OF ESTATES. ring during the marriage, whether called as a witness during the existence of the marriage, or after its dissolution, except in cases where the wife would, if unmarried, be plaintiff or de- fendant, or where the cause of action grows out of a personal Avrong or injury done by one to the other or grows out of the neglect of the husband to furnish the wife with a suitable sup- port; and except in cases where the litigation shall be concern- ing the separate property of the wife, and suits for divorce; and except also in actions upon policies of insurance of prop- erty, so far as relates to the amount and value of the property alleged to be injured or destroyed, or in actions against carriers, so far as relates to the loss of property and the amount and value thereof, or in all matters of business transactions where the transaction was had and conducted by such married woman as the agent of her husband, in all of which cases the husband and wife may testify for or against each other, in the same manner as other parties may, under the provisions of this act: Provided, that nothing in this section contained shall be con- strued to authorize or permit any such husband or wife to tes- tify to any admission or conversation of the other, whether made by him to her or by her to him, or by either to third per- sons, except in suits or causes between such husband and wife. "45 672. Reference and application in general of said section 5 of the statute. This section never renders witness competent who is incompetent under sections 1 and 2 of the act relating to evidence. But a witness who is competent to testify under said sections 1 and 2 may be incompetent under section 5 of the same act.^^ The parties in order to be competent must bring 45— Section 5, chapter 51, "Evi- 4, p. 609; Vol. 5, p. 255, and cases dence and Depositions," as amend- cited under section of statute; ed by laws of 1873-4, p. 98, sec. 1. Hurd's R. S. of 111., 1905, p. 1035. Approved January 21, 1874. In 46— Pyle v. Oustatt, 92 111., 209, force July 1, 1874. Starr & Cur- 215-217; Connolley v. Dunn, 73 111. tis Annotated Statutes of Illinois, 218; Mitchinson v. Cross, 58 111. with Jones & Addington's Supple- 366; Deniston v. Hoagland, 67 111. ments thereto, Vol. 2, p. 1837; Vol. 265. EVIDENCE AND DEPOSITIOKS. UNDER STATUTE. 605 themselves within the statute.*'^ When husband is not a party to the suit, although interested in the event thereof, the wife is a competent witness.^^ Where neither husband nor wife are parties to a suit, the wife may testify to conversations occurring during marriage.*^ The general rule is held to be, that a wife can be a witness in all cases in which her husband could be a witness.50 In a suit by a wife for malicious prosecu- tion, her husband is a competent witness.^^ In an action for slander, the husband of a plaintiff, is a competent witness on the part of the wife for slanderous words spoken of her. But the wife of a defendant is not a competent witness for him, in an action for slanderous words spoken by him of the plaintiff.'^ ^ The principle invoked, deducible from the statutory right con- ferred, is to the effect that the "right of action" is property, and, being the separate property of the husband or wife as the case may be, it is the exact case specified in the statute, when the husband and wife may testify for and against each other the same as other parties.^^ A divorced wife may testify to facts occurring after, but not before divorce in an action for seduction.^* In a bill in chancery to set aside a sale of an in- terest in an estate, it is held: Husband and wife are competent witnesses for and against each other only in the cases mentioned in the exceptions to section 5 of the act relating to evidence. The words, "except in cases where the wife would, if unmar- ried, be plaintiff or defendant," do not have reference to cases where the wife is subsequently divorced, or where her husband has died, but simply to cases where the proposed witness has 47 — Flynn v. Gardner, 3 111. App. 51 — Anderson v. Friend, 71 III. 253. 175 48 — Lincoln Ave. G. R. Co. v. 52 — Hawver v. Hawver, 78 111. Dadans, 102 111. 417. 412; Anderson v. Friend, 71 111. 49 — Galbraith v. McLain, 84 111. 475; Chicago, Burlington & Quincy ■^19. R. R. V. Dunn, 52 III. 260. 50—111. Cent. R. R. Co. v. Tay- 53— Otis v. Spencer, 102 111.622; lor, 24 111. 323; Freeman v. Free- Munford v. Miller, 7 111. App. 62. man, 62 III. 191. 54— Grose v. Rutledge, 81 111. 266. 606 THE LAW OF ESTATES. never been married, — where the controversy does not concern a right resulting from marriage.^^ So in a suit by an executor, the widow of deceased is not a competent witness for the ex- ecutor, to prove facts which came to her knowledge in conse- quence of marriage relation.^s 673. Concerning separate property of wife — husband and wife may be witness for and against each other. Where an action was commenced by the husband against a transportation company, upon a receipt given by it to him for his wife's prop- erty; and, the suit relates to the wearing apparel and orna- ments of the wife, it was held: The wife was interested in the property involved in the suit, which rendered her a competent witness, under the exception to the 5th section of the act relat- ing to evidence, which declares, that, where the suit relates to the separate property of the wife, either the husband or wife may be a witness. ^^ 674. Husband and wife agents for each other. The wife's competency to testify for her husband, as his agent in a trans- action is limited by the extent of her agency; if competent to testify as an agent to the whole transaction, she will be per- mitted to do so. If her agency only extends to a part of a trans- action,- she is a competent witness only as to that part.^^ In an 55— Smith v. Long, 106 111. 485. 111. App. 87; Brewing Co. v. Ohler- 56— Reeves v. Herr, 59 111. 8L king, 33 111. App. 356; Trealeaven 57 — Northern Line Packet Co. v. v. Dixon, 119 111. 549; Lingren v. Shearer, 61 111. 263. And see the Ry. Co., 61 111. App. 176; Pain v. following cases, which apply the Farson, 179 111. 196; Pfirshing v. statute and sustain the text: Heiter, 91 111. App. 410; Smith v. Mitchell V. McDougal, 62 111. 498; Smith, 168 IH. 490; Clark v. Peo- Kebaum v. Cordell, 63 111. 23; Big- pie, 178 111. 42; Gillespie v. Gilles- gins V. Brackman, 63 111. 316; Mc- pie, 159 111. 90; Wilcoxon v. Read, Nail V. Ziegler, 68 111. 224; Pigg 95 111. App. 35; Cassem v. Heustis, V. Carroll, 89 111. 205; Marshall v. 201 111. 235. Peck, 91 111. 187; Funk v. Eggles- 58 — Poppers v. Miller, 14 111. ton, 92 111. 515; Mueller v. Reb- App. 87; Cent. R. R. v. Messnard, han, 94 111. 142; Ledford v. Weber, 15 111. App. 213; Schneider v. 7 111. App. 87; Eads v. Thompson, Kabsch, 91 111. App. 387; McDavid 109 111. 87; Poppers v. Miller, 14 v. Rork, 92 111. App. 485. EVIDENCE AND DEPOSITIONS, UNDER STATUTE. 607 action of trespass by the husband against a stranger, for taking and carrying away the goods of the husband, it was held, the wife was in no sense the agent of her husband in the transac- tion out of which the action arose; she had no interest in the property taken, and had no care of it other than a wife may have of any property that belonged to her husband when the alleged trespass was committed. ^^ The evidence must clearly establish the agency to make either the husband or wife com- petent to testify .^"^ 675. Adverse party compelled to testify. Section 6 of the Evidence Act, provides: "Any party to any civil action, suit or proceeding, may compel any adverse party or person for whose benefit such action, suit or proceeding is brought, insti- tuted, prosecuted or defended, to testify as a witness at the trial, or oy deposition, taken as other depositions are by law re- quired, in the same manner, and subject to the same rules, as other witnesses."^! 676. Incompetency not removed by release or assignment. Section 7 of the Evidence Act, provides: "In any civil action, suit or proceeding, no person who would, if a party thereto, be competent to testify therein under the provisions of section 2 or section 3, shall become competent by resson of any assign- 59 — Hayes v. Parmalee, 79 111. cases cited under section of stat- 564. ute; Kurd's R. S. of 111., 1905, p. 60— Waggonseller v. Rexford, 2 1148. (2) Vol. 2, pp. 2155, 2156; 111. App. 455; Primmer v. Cla- Vol. 4, p. 684, "general notes"; baugh, 78 111. 94; Trepp v. Baker, also p. 690; Vol. 5, p. 294, "gen- 78 111. 146; Hawver v. Hawver, 78 eral notes," also p. 3121. Starr & 111. 412; Wing v. Goodman, 75 111. Curtis, etc.; Kurd's (1905), pp. 159; Robertson v. Brost, 83 111. 1152, 1153. 116. See section 15, chapter 68, 61 — ^Section 6, chapter 51, "Evi- "Husband & "Wife." Also sections dence and Depositions." Starr & 1 and 2, chapter 70, entitled "In- Curtis Annotated Statute of Illi- juries." Starr & Curtis Annotated nois, Vol. 2, p. 1841, and cases Statutes of Illinois, with Jones & cited; Kurd's R. S. of 111., 1905, p. Addington's Supplements thereto, 1036. See also Thorn v. Wheeler, Vol. 2, p. 2133; Vol. 4, p. 674, and 25 111. 544; Corderey v. Kughes, 6 111. App. 401. 608 THE LAW OF ESTATES. ment or release of his claim, made for the purpose of allowing such person to testify. "^2 ^ person having an undivided inter- est in fee in a tract of land, and also an estate of homestead therein, on a bill filed by him to set aside an adverse title against parties defending as executors and devisees, is not a competent witness to testify to statements and declarations of the testator in his lifetime, for the purpose of impeaching the title acquired by him to the land. Nor will he be rendered com- petent by any release or transfer of his interest made for that purpose.^3 Under the section quoted of the Evidence Act, a party does not become a competent witness by releasing or dis- claiming his interest.6^ 677. Further exceptions. Section 8 of the Evidence Act, provides: ''Nothing in this act contained shall in any manner affect the laws now existing relating to the settlement of the estate of deceased persons, infants, idiots, lunatics, distracted persons, or habitual drunkards having conservators, or to the acknowledgment or proof of deeds and other conveyances re- lating to real estate, in order to entitle the same to be recorded, or to the attestation of the execution of last wills and testaments, or of any other instrument required by law to be attested.®^ 678. Production of books and v^nritings. Section 9 of the Evidence Act, provides: "The several courts shall have power, 62— Section 7, chapter 51, "Evi- v. Pegram, 151 111. 106; Bardell dence and Depositions." Starr & v. Brady, 172 111. 420; Albers Com- Curtia Annotated Statutes of Illi- mission Co. v. Sessel, 193 111. 153. nois, with Jones & Addington's In the latter case the section was Supplements thereto, Vol. 2, p. applied. See also Christiansen v. 1841; Vol. 4, p. 610; Vol. 5, p. 256, Dunham Towing & Wrecking Co., and cases cited under section of 75 111. App. 274. statute; Kurd's R. S. of 111., 1905, 65— Section 8, chapter 51, "Evi- p. 1036. dence and Depositions." Starr & 63— Deyer v. Hoplcins, 112 111. Curtis Annotated Statutes of llli- 177. nois. Vol. 2, p. 1842; Kurd's R. S. 64— Volbracht v. White, 197 111. of 111., 1905, p. 1036. See also sec- 301; Brace v. Black, 125 111. 33; tions 60, 64, chapter 3, "Adminis- Pyle V. Pyle, 158 111. 289; Taylor tration" (ante, i6Z, 476). See also Byers v. Thompson, 66 111. 421. EVIDENCE AND DEPOSITIONS. UNDER STATUTE. 609 in any action pending before them, upon motion, and good and sufficient cause shown, and reasonable notice thereof given, to require the parties, or either of them, to produce books or writ- ings in their possession or power which contain evidence perti- nent to the issue. "*'6 If an order for the production of books and papers is entered by the court and no objection made thereto, at the time of the entry of such order, it will be con- sidered as entered by consent of all parties.^^ Reasonable no- tice must be given, and the affidavit filed in support of such notice to produce books and papers, must show such contain, evidence material to the issue to be tried in the case.^^ In such a proceeding the court may exercise a sound legal discre- tion, by limiting the inspection to matters contained in books to that only which is pertinent to the issue; it may enter an order to seal up and cancel all parts of the books produced, as do not relate to the matters in controversy. Such an order was entered by the trial court and sustained on review, as coming within the exercise of the legal discretion of the court.®® "The several courts shall have power," as used in section 9 of the Evidence Act, is held to mean all courts.'^'* 679. Printed statutes. Section 10 of the Evidence Act, provides: "The printed statute books of the United States, and of this State, and of the several States, of the Territories and late Territories of the United States, purporting to be printed under the authority of said United States, any State or Territory, shall be evidence in all courts and places in this 66 — Section 9, chapter 51, "Evi- 68 — First National Bank v. dence and Depositions." Starr & Mansfield, 48 III. 494; Fuller v. Curtis Annotated Statutes of Illi- Field, 82 Fed. Rep. 815; Hoagland nois, with Jones & Addington's v. Great Western Telegraph Co., Supplements thereto, Vol. 2, p. 30 111. App. 304; Rigdon v. Cooley, 1842; Vol. 4, p. 610; Vol. 5, p. 256, 31 111. App. 630; Bentley v. People, and cases cited under section of 104 111. App. 357. statute; Kurd's R. S. of 111., 1905, 69— Pynchon v. Day, 118 111. 9. p. 1036. 70— Bentley v. People, 104 111. 67 — Morgan v. Corlies, 81 111. App., page 356. 114. 39 610 THE LAW OF ESTATES. State, of the acts therein contained.""^ Courts of this State do not take judicial notice of statutes of other States. "^^ Such must be pleaded to be effective; but such statute is not required to be pleaded Jiaec verba. It is sufficient to state the substance of so much of the statute of a foreign State as is relied on.'^s The statutes of a sister State cannot be proven by testimony of wit- nesses.^^ But judicial notice will be taken by the United States courts of all public statutes of the States.'^^ Effect is given to section 10 of the Evidence Act as above quoted in the case of Grand Pass SJiooting Cluh v. Croshy."'^ In that case a deed was offered in evidence, acknowledged before a Notary Public of Indiana. It was urged that the certificate was not in com- pliance with the forms of acknowledgment required by the laws of Illinois. To support the deed the plaintiff offered in evi- dence a copy of a supplement to a revision of the Statutes of Indiana, which appeared to be published by authority of the General Assembly of the State of Indiana. Held: Sufficiently proven under section 10 aforesaid of the Illinois statute. In the case of Figge v. Rowlen,'^'^ an affidavit, sworn to before a Notary in Ohio, which did not contain a certificate "that Notary was authorized under laws of Ohio to administer oaths" held sufficiently proven, as the true meaning or construction of the statute of a foreign State, as declared by the courts of last re- sort of such State, may be proven by books of reports of deci- 71 — Section 10, chapter 51, "Evi- question should contain to be ad- dence and Depositions." Starr & missible in evidence, see La Fay- Curtis Annotated Statutes of Illi- ette Bank v. Stone, 1 Scam. (111.) aois, with Jones & Addington's 424; Sick v. Woodruff, 15 111. 15; Supplements thereto, Vol. 2, p. Spangler v. Jacoby, 14 111. 297. 1843; Vol. 4, p. 610, and cases cited 74— McDeed v. McDeed, 67 111. under section of statute; Kurd's 545 R. S. of 111., 1905, p. 1036. 75— Gormley v. Bunyan, 138 U. 72— Pease v. Rhawn, 13 111. App. S. 623. 637. 76—181 111. 269-270. 73— L. N. A. Ry. Co. v. Shires. 77—185 111. 238. Section 12, 108 111. 628-629; Eagan v. Connolly, chapter 51, "Evidence and Deposi- 107 111. 458. As to what authen- tions." See statute citations note ticated copy under statute in 83. Post 681. EVIDENCE AND DEPOSITIONS, UNDER STATUTE. 611 sions of such coui-ts purporting to be published by authority; or by the testimony of witnesses learned in the law of such StateJ^ Proof of a foreign law should be made to the court and not to the jury.^^ 680. Exemplified statutes. Section 11 of the Evidence Act, provides: **An exemplification by the Secretary of this State, of the laws of the other States and Territories, which have been or shall hereafter be transmitted, by order of the executive or legislatures of such other States or Territories, to the Governor of this State, and by him deposited in the office of said Secre- tary', shall be admissible in evidence in any court of this State, "s^ The certificate of the Secretary of State that it ap- pears, from the records of his office, that the Governor on a certain day appointed A, B, and C trustees, to take charge of the assets of the State Bank, as provided by law, is clearly in- admissible to prove the fact of such appointment. The Secre- tary should have certified to a transcript of the record showing the appointment.^^ The courts of this State will not take judi- cial notice of the statutes of other States changing the common law, and, in the absence of proof to the contrary, will presume that the common law is in force in such States.^- 681. Reports of courts. Section 12 of the Evidence Act, provides: "The books of reports of decisions of the Supreme Court, and other courts of the United States, of this State, and of the several States and the Territories thereof, purporting to be published by authority, may be read as evidence of the deci- sions of such courts. "83 78— Figg V. Rowlen, 185 111. 238. 81— Colder v. Bressler, 105 111. 79 — Christiansen v. Graves App. 419. Tank Works, 223 111. 142. 82— Tinkler v. Cox, 68 111. 120. 80 — Section 11, chapter 51, "Evi- 83 — Section 12, chapter 51, "Evi- dence and Depositions." Starr & dence and Depositions." Starr & Curtis Annotated Statutes of Illi- Curtis Annotated Statutes of Illi- nois, Vol. 2, p. 1844, and cases nois, with Jones & Addington's cited; Kurd's R. S. of III. 1905, p. Supplements thereto, Vol. 2, p. 1036. 1844; Vol. 4, p. 610, and cases 612 THE LAW OF ESTATES. 682. Court records — how certified. Section 13 of the Evi- dence Act, provides : ' ' The papers, entries and records of courts may be proved by a copy thereof certified under the hand of the clerk of the court having the custody thereof, and the seal of the court, or by the judge of the court if there be no clerk. "^^ The court takes judicial notice of its own records without proof.^^ Judicial record is admissible to prove itself, and this, notwithstanding, the court in which the cause is pending is not entitled to the custody, or whether such record is or is not prop- erly brought into court.^*^ Court records may be proved by the production of the original records.^'^ The certificate of official should recite facts and is bound to record a fact, not conclusions. The proper proof is a copy of the record duly authenticated.^^ Foreign judgments as well as domestic ones, may be authenti- cated as provided in section quoted.^ ^ Certified copy of patent office record, admissible to establish a prima facie assignment of patent^o 683. Records of cities — how certified. Section 14 of the Evidence Act, provides: "The papers, entries, records and ordinances, or parts thereof, of any city, village, town or county, may be proved by a copy thereof, certified under the hand of the clerk or the keeper thereof, and the corporate seal, cited; Kurd's R. S. of 111., 1905, 87— Walker v. Doan, 108 111. 236. p. 1036. 88— Steidel v. People, 173 111. 84 — Section 13, chapter 51, 33; Schaefer v. Wundene, 154 111. "Evidence and Depositions." Starr 577; City of Chicago v. English, & Curtis Annotated Statutes of 180 111. 476. Illinois, with Jones & Addington's 89 — People v. Miller, 195 111. Supplements thereto. Vol. 2, p. 624; Calhoun v. Ross, 60 111. App. 1844; Vol. 4, p. 610, and cases 312; Horner v. Spellman, 78 111. cited; Hurd's R. S. of 111., 1905, 206; Thompson v. Mason, 4 111. p. 1036. App. 452; Welch v. Sykes, 8 III. 85— Robinson v. Brown, 82 111. (3 Gilm.) 197. 279; Evans v. People, 27 111. App. 90 — Standard Elevator Co. v. 616. Crane Elevator Co., 76 Fed. Rep. 86— Stevison v. Earnest, 80 111. 793; National Cash Register Co, v. 517. Navy Cash Register Co., 99 Fed. Rep. 89. EVIDENCE AND DEPOSITIONS, UNDER STATUTE. 613 if there be any; if not, under his hand and private seal. "^^ Copy proves what original would.^^ Certificate must be ap- pended to contents of record and not be merely placed to con- clusions drawn from such record by the officer making the same.^3 Objection to certified copy of record cannot first be raised on appeal.^* The city ordinance of a sister State may be proved by the original record or a sworn copy of it.^^ Where the statute provides that proof of the publication of an ordi- nance shall not be required until denied under oath, positive denial is necessary; denial by information and belief is not sufficient.^^ And where the law requires a record to be kept of corporate action by any of the agencies of the State, the rec- ord alone can be resorted to, to establish such action in all, col- lateral proceedings.^^ 684. Records of private corporations — how certified. Sec- tion 15 of the Evidence Act, provides: "The papers, entries and records of any corporation or incorporated association, may be proved by a copy thereof, certified under the hand of the secretary, clerk, cashier or other keeper of the same. If the corporation or incorporated association has a seal, the same shall be affixed to such certificate. ' '^^ The records of a building and loan association, are susceptible of proof in various ways: from the by-laws, from the action of the board of directors, from the methods of exacting payment of dues, interest and penalties; its methods of loaning money, etc., and proof can be made under section 15 and 18 of the act in relation to evidence 91 — Section 14, chapter 51, "City and Village Act." Kurd's R. "Evidence and Depositions." Starr S. of 1905; see also Railroad Co. & Curtis Annotated Statutes of v. Winters, 175 111. 293; Railroad Illinois, with Jones & Addington's Co. v. Eggermann, 161 111. 159; Supplements thereto. Vol. 2 p. Billings v. City of Chicago, 167 1845; Vol. 4, p 610; Vol. 5, p. 256, 111. 344; Railroad Co. v. Binder, and cases cited; Kurd's R. S. of 69 III. App. 267. 111., 1905 p. 1036. 93— €ity of Chicago v. English, 92— Schoot V. People, 89 111. 180 111. 476; Steidel v. People, 173 195; see section 20, chapter 24, 111. 33; Boyd v. Railroad Co., 103 111. App. 202. 614 THE LAW OF ESTATES. and depositions,^^ A pamphlet purporting to be a copy of the by-laws of the order of "Foresters" is inadmissible unless proved as provided by section 15 or 18 of Chapter 51 entitled "Evidence and Depositions. "^ 685. Form of certificate. Section 16 of the Evidence Act, provides: "The certificate of any such clerk of a court, city, village, town, county, or secretary, clerk, cashier, or other keeper of any such papers, entries, records or ordinances, shall contain a statement that such person is the keeper of the same and if there is no seal, shall so state.- As affecting a foreign record of a judgment, the certificate failed to state, that such person certifying such record was the keeper of the same; and this omission rendered papers inadmissible.^ Where the corporation was named by initials in the certificate, oral testimony was ad- mitted to establish the meaning of such, it was held: Objection thereto on that ground was not valid.^ But objection if any, to a certificate must be specific, if not so, it is not well taken and the court in reviewing the record will not consider any ob- jection not specific."^ 94 — Deuterman v. Ruppel, 200 der of Forrester's v. Heath, 80 III. 111. 201. App. 239; Lloyd v. Knights of 95— L. N. A. Ry. Co. v. Shires, Pythias, 98 Fed. Rep. 69. 108 111. 617. 2— Section 16, chapter 51, 96 — Lynch v. City of Litchfield, "Evidence and Depositions." Starr 16 111. App. 612. & Curtis Annotated Statiites of 97 — People v. Madison Co. 125 Illinois, with Jones & Addington's 111. 334. Supplements thereto. Vol. 2, p. 98 — Section 15, chapter 51, 1846; Vol. 4, p. 611, and cases "Evidence and Depositions." Starr cited; Kurd's R. S. of 111., 1905, & Curtis Annotated Statutes of p. 1037. Illinois, with Jones & Addington's 3 — Thompson v. Mason, 4 111. Supplements thereto. Vol. 2, p. App. 452; Campbell v. Miller, 84 1846; Vol. 4, p. 611, and cases 111. App. 214. cited; Kurd's R. S. of 111., 1905, 4— Phillips v. Webster, 85 111. p. 1036. 146. 99— Post 687; Cantwell v. 5 — Ewart v. Village of Western Welch Receiver, 187 111. 275. Springs, 180 111. 332; Cantwell v. 1— Statute cited note (98); Or- Welch, 187 111. 279. EVIDENCE AND DEPOSITIONS, UNDER STATUTE. 616 686. Records of justices of the peace — certified copies. Sec- tion 17 of the Evidence Act, provides: "The proceedings and judgments before justices of the peace may be proved by a cer- tified copy thereof, under the hand and private seal of the jus- tice before whom such proceeding or judgment is had, or his successor, having the custody of the same. When such certified copy is to be used as evidence in any county other than that in which the justice so certifying resides, the certificate of the county clerk shall be annexed, certifying that the justice before whom the proceeding or judgment was had was, at the time such proceeding or judgment was had, a justice of the peace, duly commissioned, and if the certificate is by a successor, that he was such successor at the time of making such certificate."* Where a certified copy of a judgment of a justice of the peace of another State was offered in evidence, it was held the party entitled to introduce such evidence, must prove that such jus- tice had jurisdiction of the subject-matter of the suit.'^ The judgment may be proved by original docket of justice within the county and State without resort to certified copy of the record of his docket.^ A record to which was attached the cer- tificate of the justice of the peace, but certificate of the county clerk as required by statute entirely omitted, held inadmissible in evidence.^ 687. Sworn copies — false certificate — penalty. Section 18 of the Evidence Act, provides: **Any such papers, entries, records and ordinances may be proved by copies examined and sworn to by credible witnesses." Section 19. **If any such officer, clerk, secretary, cashier, justice of the peace, or other person authorised to certify copies of any papers, entries, rec- 6 — Section 17, chapter 51, 7 — Trader v. McKee, 1 Scam. "Evidence and Depositions." Starr (III.) 558. & Curtis Annotated Statutes of 8 — Willoughby v. Dewey, 54 Illinois, Vol. 2, p. 1846, and cases 111. 266. cited; Kurd's R. S. of 111., 1905, 9— Crossett v. Owens, 110 UL p. 1037. 378. 616 THE LAW OF ESTATES. ©rds or ordinances, shall knowingly make a false certificate, he shall be punishable in the same manner as if he were guilty of perjury. "10 10 — Sections 18 and 19, chapter 51, "Evidence and Depositions." Starr & Curtis Annotated Statutes of Illinois, with Jones & Adding- ton's Supplements thereto. Vol. 2, p. 1847; Vol. 4, p. 611; Kurd's R. S. of 111., 1905, p. 1037. If a person in official station is bound to record a fact, the proper proof is a copy of the record duly authenticated; but as to matters of fact such is not in duty bound to record, his certificate, being extra-official, is merely the state- ment of a private person, and will therefore be rejected. Schaefer v. Wunderle, 154 111. 577. The evi- dence provided for in Section 18, is original, and when such exists of record, secondary evidence can not be resorted to. Mandel v. Swan, etc., Co., 154 111. 177. CHAPTER XXXVIII APPRENTICES Sec, 688. Introductory remarks. 689. Who may bind. 690. Finding of drunkenness and disability of parentsi, whose consent is required. Indorsement of indenture. 691. Power of executors under will. 692. Beggars, pauper children, arrest of such — Binding same. 693. Indentures, age and time of service. What indenture shall provide. 694. Rights of the parties. Sec. 695. Compensation to be specified and secured to minor. 696. When indenture to be filed, void indenture. Duty of of- ficers. 697. Complaints against master. 698. Removing apprentice out of the State. 699. Removal of master. When ap- prentice discharged. 700. Death of master. 701. Enticing away apprentice, penalty. 702. Action measure of damages, for enticing away. Sec. 688. Introductory remarks. Apprentices are termed in law, a class of infant servants, who are legally bound to service for a term of years to learn some art or trade. The term is applied to infant males under twenty-one years of age; and to unmarried females under eighteen years of age.* Ap- prentices are generally bound by a statutory form of indenture ; under which, the apprentice by his or her own free will, or by their own act (if not paupers), and with the consent of their father, or mother, or guardian or testamentary executor; and in some instances such are bound under authority vesting by legislative enactment in a justice of the peace, a judge of a court of record or other specially authorized public official of the different States. In order to bind the apprentice it is neces- sary that the statutory requirements be substantially if not strictly followed.- "Children under the age of sixteen years 1—2 Kents Com. section 263. 2— Page v. Marsh, 36 N. H. 305. 617 618 THE LAW OF ESTATES. may be bound as apprentices, clerks or servants, until they ar- rive at that age, with or without their consent. "^ And this has been the law of this State since the revision of 1874. Under the statute of 1845, the infant could be bound without their consent under fourteen years; at which age, they might be bound with their consent, if males, till the age of twenty-one years, and females till the age of eighteen years.^ The several States of the Union by statutory enactment, have in a great measure, protected the infant from abuse and imposition by those having their care and custody. Wilful and unnecessary exposure to the inclemency of the weather, employment of such in any manner injurious to health or morals; or the employ- ment of such in any manner dangerous to the limbs or the physical body is strictly forbidden under the criminal code of Illinois.^ 689. Who may bind. The statute of Illinois relating to "Apprentices" provides: "A minor may be bound as afore- said by the father with the consent of the mother, or in case of the death, habitual drunkenness, prostitution, imprisonment in the penitentiary or incapacity of the mother, or wilful de- sertion of the family for six months, without her consent; or, in case of the death, habitual drunkenness, imprisonment in the penitentiary or incapacity of the father, or his desertion of the family for the space of six months, by the mother; or, in case neither father nor mother is living and free from said objections, by the gl^ardian; or if the minor has no parent or guardian, by the judge of the County or Circuit Court of the county in which the minor resides. An illegitimate may be 3 — Section 1, chapter 9, "Ap- 5 — Starr & Curtis Annotated prentices." Starr & Curtis An- Statutes of Illinois, par. 492, notated Statutes of Illinois, Vol. section 42a, approved and in 1, p. 423, Kurd's R. S. of 111., 1905, force July 1, 1895, chapter 38, p. 160. Criminal Code of Illinois, Forbid- 4 — Same statute citation as ding certain employment of chil- note 3. dren; Kurd's R. S. of 111., 1905. p. 754. APPRENTICES. 619 bound by his or her mother, during the lifetime of the putative father, as well as after his decease."^ 690. Finding of drunkenness and disability of parents, whose consent is required — indorsement on indenture. Section 3 of the same act, provides : ' ' The fact of such habitual drunk- enness, prostitution, imprisonment, incapacity or desertion, may be tried and found by a jury to be impaneled for that purpose by the County or Circuit Court of the county in which the minor resides, upon such reasonable notice to the parties inter- ested, by personal service or advertisement, as the court shall direct. ' * Section 4. ' ' The finding of the jury shall be indorsed upon the indenture by the judge, attested by the clerk, under the seal of the court, and shall be deemed sufficient evidence of the facts found. "^ 691. Power of executors under will. Section 5 of the same act, provides: "The executor or executors who are, or shall be, by the last will and testament of a father, directed to bring up his child to some trade or calling, shall have power to bind such child by indenture, in like manner as the father, if living, might have done; or shall raise such child according to such directions: Provided, this section shall not be so construed as to deprive the mother of the custody and tuition of her child, without her consent, if she be a fit and competent person to have such custody and tuition.^ 692. Beggars — pauper children — arrest of such — binding same. Section 6. "Any child under the age of sixteen, who habitually begs for alms, or who is, or either of whose parents is chargeable to the county or town as having a lawful settle- 6 — Section 2, chapter 9, "Ap- Annotated Statutes of Illinois, prentices." Starr & Curtis Anno- Vol. 1, pp. 423, 424; Kurd's R. S. tated Statutes of Illinois, Vol. 1, of 111., 1905, p. 160. p. 423; Kurd's R. S. of 111., 1905, 8— Section 5, chapter 9, "Ap- p. 160. prentices." Starr & Curtis Anno- 7 — Sections 3 and 4, chapter 9, tated Statutes of Illinois, Vol. 1, "Apprentices." Starr & Curtis p. 424. Kurd's R. S. of 111., 1905, p. 160. 620 THE LAW OF ESTATES. ment therein, whereby the child has also to be supported, or who is supported there, in whole or in part, at the charge of the county or town, may be bound as an apprentice, clerk or servant until he or she arrives at that age, by the county board or the overseers of the poor, as the case may be, with the approval of the judge of the County or Circuit Court. "^ Section 7. "The court may on application of the county board or overseer of the poor, issue a writ requiring the sheriff, coroner or any constable of the county, to bring such minor before it, for the purpose of being so bound. "^^ 693. Indentures — age and time of service — ^what indentures shall provide. Section 8. "No minor shall be bound, unless by an indenture of two parts, sealed and delivered by both par- ties, and when the consent of any person or court is required, the same shall be signified, in writing, in or upon the indenture, and signed by the person or judge whose consent is required." Section 9. "The age and time of service of every apprentice or servant shall be inserted in such indentures; but if the age is unknown, then it shall be inserted according to the best in- formation, which age shall, in relation to the term of service, be taken as the true age of such minor. "^^ "In all indentures it shall be provided that the master shall cause such clerk, ap- prentice or servant to be taught to read and write, and the ground (general) rules of arithmetic; and also that at the ex- piration of such term of service, the master shall give to such apprentice a new Bible and two complete suits of new wearing apparel suitable to his or her condition in life, and twenty ($20.00) dollars in money, in all cases where the term of service 9 — Section 6, chapter 9, "Ap- prentices." Starr & Curtis Anno- prentices." Under this section of tated Statutes of Illinois, Vol. 1, the statute, it is held that it is p. 424; Kurd's R. S. of 1905, p. not necessary in terms to describe, 160. in the indenture, the person so 11 — Sections 8, 9 and 10, chap- bound out "is a poor child." Hayes ter 9, "Apprentices." As amended V. Borders, 1 Gilm. (111.) 46. by law of 1903, May 15, 1903, page 10 — Section 7, chapter 9, "Ap- of statute same as No. 10. APPRENTICES. 621 has been one year or more. In all miu icipalities where a man- ual training school is maintained for the technical instruction of apprentices, such indentures shall further provide that it shall be the duty of the master to cause the apprentice to at- tend such school for at least three consecutive months in each year, without expense to the apprentice. "^^ 694. Rights of the parties. An indenture of apprenticeship, which is not in conformity with the statute on that subject, is void as to the minor, but remains binding upon the father of the minor who joined with him in its execution, and stipulated that its conditions should be performed.^ ^ A father who is entitled to the services of his minor son, and for whom he is obliged to provide, may, at the common law, assign those services to an- other by contract, for a consideration to enure to himself.^* So where an indenture of apprenticeship was entered into by a minor, his father joining therein, stipulating that the minor was to perform certain services for a specified compensation, the father also covenanting separately that his son should do and perform what he had agreed to do on his part, it was held, that, payment being made for the services of the minor according to the terms of the agreement, a recovery could not be again had 12 — Amendment includes mat- of it, expressly describe and de- ter after * in section 10. Starr & note who are the parties to it, (as Curtis Annotated Statutes of Illi- between A. of the first part, and nois. Vol. 5, p. 32; Vol. 1, pp. 424, B. of the second part) C. can- 425, as to sections 8 and 9; Kurd's not sue thereon, although the ob- R. S. of 111., 1905, pp. 160, 161. The ligation purport to be made for fact that a person is an inden- his sole advantage, and contain tured servant cannot be proved by an express covenant with him to parol, the indenture itself must be perform an act for his benefit, used as the higher and better Hager v. Phillips, 14 111. 259. evidence. Chambers v. People, 4 13 — Day v Everett, 7 Mass. 154; Scam. (111.) p. 351. In the fol- Butler v. Hubbard, 5 Pick, 250; lowing case an action of covenant United States v. Bainbridge, 1 was brought, the declaration being Mason, 71-78; Branch v. Ewing- on an indenture of apprenticeship, ton, 2 Doug. 518; Cuming v. Hill, for breach of covenants therein. 3 Barn & Aid, 59; Ford v. Mc- Held in that case. If a deed be Vay, 55 111. 119. inter parties, that is, on the face 14 — Ford v. McVay, 55 111. 119. 622 THE LAW OP ESTATES. for such services in the name of the minor, on the ground the in- denture was void under the statute; because, as to the minor and his services it was binding on the father, who was entitled to such services. An implied contract cannot arise where there is a subsisting express contract covering the entire subject matter.^^ 695. Compensation to be specified and secured to minor. Section 11 of the Apprentice Act, provides: "Every sum of money paid or agreed for, with or in relation to the binding of any clerk, apprentice or servant, as a compensation for his serv- ices, shall be inserted in the indentures, and all money or prop- erty so paid or agreed to be paid, shall be secured to and for the sole use and benefit of the minor, "i^ A right to sue upon a writ- ten contract of apprenticeship, properly alleged and supported by proof is fully recognized by the Illinois courts. ^'^ 696. When indenture to be filed — void indentures^ — duty of ofiicers. Section 12 of the Apprentice Act provides: "When- ever any minor shall be bound by other than his parent or guard- ian, one copy of the indentures shall be filed in the office of the clerk of the County Court, for safe keeping. "^^ Section 13. "All indentures, covenants, promises and bargains, for taking, bind- ing or keeping any apprentice, clerk or servant, not in conform- ity with the provisions and requirements of this act, shall be utterly void in law, as against such clerk, apprentice or serv- ant. "^^ Section 14. "It shall be the duty of the officers or persons binding such minors, and of the judge of the County or Circuit Court, to see that the terms of the indenture are complied with, and that such minor is not ill used."2o 15 — Ford V. McVay, 55 111. p. 17 — Chicago Stove Works v. 122, and authorities cited in opin- Lalley, 41 111. App. 249; Ford v. ion; Shute v. Dorr, 5 Wend. 203; McVay, 55 111. 122; Walker v. Jennings v. Graves, 2 Blackf. 449; Brown, 28 111. 378. Chase v. Smith, 5 Vt. 556; Walker 18— Section 12, chapter 9, "Ap- V. Brown, 28 111. 378. prentices." 16 — Section 11, Chapter 9, "Ap- 19 — Section 13, Chapter 9, "Ap- prentices." Starr & Curtis Anno- prentices." tated Statutes of Illinois, Vol. 1, 20 — Section 14, chapter 9, "Ap- p. 425; Kurd's R. S. of 111., 1905. prentices." As to statute citations, p. 161. APPRENTICES. 623 697. Complaints against master. Section 15. "The judge of the Circuit or County Court shall at all times receive the com- plaints of any person against masters, alleging undeserved or immoderate correction, unwholesome food, insufficient allowance of food, raiment or lodging, want of sufficient care or physic in sickness, want of instruction in their trade or profession, or the violation of any of the agreements or covenants in the in- denture of apprenticeship contained or that the apprentice, clerk or servant is in danger of being removed out of the juris- diction of this state; and shall cause such masters to be sum- moned before them, and shall, on the return of the summons, whether such master appear or not, hear and determine such cases in a summary way, and make such order thereon as in the judgment of the said judge will relieve the party injured in fu- ture ; and shall have authority, if said judge think proper, to dis- charge such clerk, apprentice or servant from his apprentice- ship or service ; and in case any money or other thing shall have been paid, given or contracted or agreed for by either party, in relation to the said apprenticeship or service, shall make such order concerning the same as the said judge shall deem just and reasonable. And if the apprentice so discharged shall have been bound originally as provided in the sixth section of this act, it shall be the duty of the judge granting the discharge, again to bind him, if said judge shall think proper. "21 698. Removing apprentice out of State. Section 16. "It shall not be lawful for any master to remove any clerk, appren- tice or servant bound to him as aforesaid, out of this State, with- out the consent of the county court ; and if, at any time, it shall appear to any judge or justice of the peace, upon the oath of any competent person, that any master is about to remove or notes 18, 19, 20, see Starr & Cur- 21— Section 15, chapter 9, "Ap- tis Annotated Statutes of Illinois, prentices." Starr & Curtis An- Vol. 1, p. 425; Kurd's R. S. of 111., notated Statutes of Illinois, Vol. 1905, p. 161. 1, p. 425; Kurd's R. S. of 111. 1905, p. 161. 624 THE LAW OF ESTATES. cause to be removed any such clerk, apprentice or servant out of this State, it shall be lawful for such judge or justice to issue his warrant, and to cause such master to be brought before him, and if, upon examination, it appear that such apprentice, clerk or servant is in danger of being removed without the jurisdiction of this State, the judge or justice may require the master to en- ter into recognizance, with sufficient security, in the sum of $1,000, conditioned that such apprentice clerk or servant shall not be removed without the jurisdiction of this State, and that the said master will appear with the apprentice, clerk or servant before the Circuit Court, at the next term thereof and abide the decision of the court therein; which recognizance shall be re- turned to the Circuit Court, and the said court shall proceed therein in a summary manner, and may discharge or continue the recognizance, or may require a new recognizance, and other- wise proceed according to law and justice. But if the master, when brought before any judge or justice, according to the pro- visions of this section, will not enter into a recognizance as afore- said, if required so to do, it shall be lawful for such court or justice to discharge such clerk, apprentice or servant from such apprenticeship or service, and to award judgment against such master for costs, and for such sum as, considering the terms of the indenture and the condition of the parties, may be deemed just and reasonable. "22 699. Removal of master — when apprentice discharged. Sec- tion 17. Whenever any master of any clerk, apprentice or serv- ant, bound by the court as aforesaid, shall wish to remove out of this State, or to quit his trade or business, it shall be lawful for him to appear with his clerk, apprentice or servant before the Circuit or County Court of the proper county; and such court shall have power, if deemed expedient, to discharge such clerk, apprentice or servant from the service of such master.^^ 22— Section 16, chapter 9, "Ap- 1, p. 426; Kurd's R. S. of 111., 1905, prentices." Starr & Curtis An- p. 161. notated Statutes of Illinois, Vol. 23 — Section 17, chapter 9, "Ap- APPRENTICES. 625 700. Death of master. Section 18. "When any person shall become bound as clerk, apprentice or servant, according to the provisions of this act, to two or more persons, and one or more of them die before the expiration of the term of service, the indentures and contracts shall survive to and against such sur- vivors; and in case of the death of all of the masters in any such indenture or contract named, before the expiration of the term of service, such clerk, apprentice or servant shall be there- by discharged from such service. "^^ 701. Enticing away apprentice — penalty. Section 19. "Every person who shall counsel, persuade or entice any clerk, apprentice or servant to run away, or to absent himself from the service of his master, or to rebel against or assault his master, shall forfeit and pay a sum not less than $20 nor more than $500, to be sued for and recovered by action on the case, with costs, by such master, in any court of competent jurisdiction. "^^ 702. Action — measure of damages for enticing away. An action will lie against a party who shall "counsel, entice and persuade" an apprentice to depart from the service of his mas- ter; whether the apprentice shall act upon the counsel given or not.26 At common law the master may maintain action against any one who entices away his servant.^^ In an action for dam- ages for enticing away the plaintiff's servants, the following in- struction was given to the jury and held proper and correct: "That the plaintiff, if entitled to recover at all, would be en- titled to recover the value of the services lost, up to the time of the commencement of the suit, the reasonable expenses necessar- prentices." Starr & Curtis An- 25 — Section 19, chapter 9, "Ai>- notated Statutes of Illinois, Vol. prentices." Starr & Curtis An- 1, p. 426; Kurd's R. S. of 111., 1905, notated Statutes of Illinois, Vol. p. 161. 1, pp. 426, 427; Kurd's R. S. of 111., 24— Section 18, chapter 9, "Ap- 1905, p. 162. prentices." Starr & Curtis An- 26 — HoUiday v. Gamble, 18 111. notated Statutes of Illinois, Vol. 35. 1, p. 426; Kurd's R. S. of 111., 1905, 27— Bixby v. Dunlap, 56 N. H. p. 162. 456. 40 626 THE LAW OF ESTATES. ily incurred in getting said servants back again, and damages for the loss of time, trouble and injury sustained until the com- mencement of this suit in consequence of the taking away of the servants. ' '^^ 28 — Hays v. Borders, 1 Gilm. (6 111.) 46. See also authorities cited note 13 of this chapter, and also Sec. 21, Chapter 64, "Guar- dian and Ward," Starr & Curtis' Annotated Statutes of Illinois, Vol. 2, p. 2086, post 650. That section of the Statute providing when there is not money of the ward sufficient to teach him to read and write, and the elemen- tary rules of arithmetic, and the guardian fails or neglects to have him so educated, the court shall have power to put out the ward to any other person for the purpose of baviug him so educated. CHAPTER XXXIX APPOFNTMENT AND QUALIFICATION OF GUARDIANS Sec. 703. Introductory remarks. 704. Who are minors. 705. The infant cannot change his domicile. 706. Appointment of guardian, jurisdiction. 707. Concealment of material facts from court, effect. 708. Nomination of guardian by court, by minor. 709. Guardian his duties; custody of minor, visitation of minor. Sec. 710. Testamentary guardian; es- tate, custody. 711. Must qualify and give bond, where the same is not waived. 712. The bond required. 713. Limitation. 714. Powers and duties of testa- mentary guardian. 715. Testamentary guardian, com- mission, bond. 716. Appointment, hearing, bond. 717. Suit on bond. 718. Inventory; form of same. Sec. 703. Introductory remarks. At common law, there were many kinds of guardians. The three principal or general kinds were classified as guardians by nature, by nurture, and in socage. The guardians by nature and by nurture, were the parents; the father first, and on his death the mother. Neither guardianship by nature or by nurture gave the control of the personal or real estate of the ward to such guardians. The guardianship in socage was given to the next of kin, and such ex- tended to the custody of the person and of the estate, both real and personal, to the age of twenty-one years, unless the ward terminated it at the age of fourteen years, by an election, so to do. This latter guardianship was generally given to the next of kin, who could not possibly inherit from the ward; however, since the enactment of the laws of descent, such guardianship cannot exist in this country. All of those common law terms at- taching to guardians have given way to statutory enactments in 627 628 THE LAW OF ESTATES. most, if not all of the States of our Union. Illinois, by legislat- ive enactments define biit twoj the statutory guardian and the testamentary guardian. In particular cases, however, the law recognizes and finds quasi guardians; these arise where there has been no regular appointment of a guardian as directed by statute, and where the general principle in such case, is: That any person who takes possession of an infant's property, takes it in trust for the infant. Thus the father may become a quasi guardian, but as such having possession of infant's property is treated as a trustee and accountable as such. As to the control of the person of a minor, the father is guardian by nature. As to the estate of the minor, the father has no power, without an appointment, and in this way security is provided for the faith- ful performance of that trust. These general questions will of necessity hereafter arise in regular order, and so far as they are useful and in force will be discussed. The authorities cited give the common law relating to guardians and show the distinction between that law and the modern statute.^ 704. Who are minors. The statute of Illinois entitled "Guardian and Ward" provides: "That males of the age of twenty-one and females of the age of eighteen years shall be con- sidered of full age for all purposes ; and until these ages are at- tained they shall be considered minors. ' '^ We call attention also to section 18 of the act entitled " Conveyances, "^ providing: "Any married woman, being above the age of eighteen years, joining with her husband in the execution of any deed, mort- gage, eonveyance, power of attorney, or other writing of or re- lating to the sale, conveyance or other disposition of her lands or real estate, or any interest therein, shall be bound and con- 1— Stevenson v. Westfall, 18 111. Perry v. Carmichael, 95 111. 530; 211; Kester v. Stark, 19 111. 330; School Trustees v. Kirwin, 25 111. Bursen v. Goodspeed, 60 111. 277; 73; Norton v. Hixon, 25 111. 439. Scliouler on Domestic Relations, 2 — Section 1, chapter 64, "Guar- 392, 443; Perry on Trusts, 224; dian and Ward" act. Davis V. Harkness, 1 Gilm. (111.) 3 — Section 18, chapter 30, "Con- 173; Muller v. Bemner, 69 111. 108; veyance" act. APPOINTMENT AND QUALIFICATION OF GUARDIAN. 629 eluded by the same, in respect to her right, title, claim or in- terest in such estate, as if she were sole. ' '^ Also section 9 of the act entitled "Husband and Wife." A deed executed by a mar- ried woman under the age of eighteen years, for the conveyance of her estate, is void, and not merely voidable; hence she is not required to take any steps after coming of age to avoid it.^ And as to the effect of other acts of a minor where the statute ap- plies, as given above. See cases cited, notes 6 and 7. 705. The infant cannot change his domicile. The domicile of an infant is that of his father, if living ; if the father be dead, then the domicile of the infant is that of the mother, if she be living and unmarried. If both parents be dead or the mother living and married, then the domicile of the infant is that of the natural guardian or the statutory guardian; for the infant can- not change his domicile. But for the protection of either a guardian or a ward, a guardian may be appointed, where the 'person or any property of the infant may be found.^ 706. Appointment of guardian — jurisdiction. Section 2 of the guardian and ward act provides: "The County Courts in their respective counties may, when it shall appear necessary or convenient, appoint guardians to minors, inhabitants of or resi- dents in the same county, and to such as reside out of this State and have an estate within the same, in the county where the real estate or some part thereof may lie ; or if he has no real es- 4— Section 9, chapter 68, "Hus- 1129. (2) Starr & Curtis, etc., band and Wife" act. Vol. 1, pp. 927, 928 and cases 5 — Harrer v. Wallner, 80 111. cited; Kurd's 1905, p. 466. (3) 197. Starr & Curtis, etc., Vol. 2, p. 6— Stevenson v. Westfall, 18 111. 2126; Vol. 4, p. 674; Kurd's 1905, 209. p. 1147. (4) Kurd's R. S. of 111., 7 — Sections 3 and 6, chapter 89, 1905, section amended and in "Marriages," section 1, chapter force July 1, 1905, pp. 1353, 1354. 148, "Wills." As to statute cita- (7) Starr & Curtis, etc., Vol. 3, p. tions notes 3, 4, 5 and 7, see Starr 4022; Kurd's 1905, p. 2050. & Curtis Annotated Statutes of Illi- S — Lamar v. Micou, 112 U. S. nois, Vol. 2, p. 2075, and cases 452; Gillett v. Wiley, 126 111. 310. cited; Kurd's R. S. of 111., 1905, p. 630 THE LAW OF ESTATES. tate, then in any county where he may have personal property. ' '^ The County Court having full jurisdiction of matters of probate and guardianship, is a court of limited, but not of inferior, juris- diction. It is a court of record, and its judgments are to be up- held by the same presumptions applicable to the judgments of other courts of record.^ <> By the statute of Illinois, it is only in the event that a minor is a non-resident of the State, that the element of an estate or property is essential to give jurisdiction to a court to appoint a guardian. ^^ The authorities hold an order of court appointing a guardian, regular upon its face and not void for want of jurisdiction, cannot be collaterally at- tacked.i2 707. Concealment of material facts from court — effect. When an applicant for guardianship letters is in possession of facts which he has every reason to believe would materially in- fluence the court in acting upon his application, it is his duty to disclose them ; and if, from a corrupt motive and with the inten- tion of over-reaching the court, he suppresses them, he is guilty of a wrong.i3 In equity the suppression of facts which, if known, would have prevented a purchase, vitiates the sale.^* Where confidential relations exist, such as those between prin- cipal and agent, the secret acquisition of the title or rights of property of the principal, by the agent, whether under legal process or otherwise, is such a concealment of facts as 9 — Section 2, chapter 64, "Guar- Davis v. Hudson, 29 Minn. 27; dian and Ward." Starr & Curtis Johnson v. Beasley, 65 Mo. 250; Annotated Statutes of Illinois, People v. Medart, 166 111. 351. with Jones & Addington's Supple- 11 — Barnsback v. Dewey, 13 111. ments thereto, Vol. 2, p. 2076; App. 581. Vol. 4, p. 66.7; and cases cited un- 12 — People v. Medart, 166 111. der section of statute; Hurd's R. 351, and cases cited in opinion. S. of 111., 1905, p. 1129. 13— Lockridge v. Foster, 4 Scam. 10 — Propts V. Meadows, 13 111. (111.) 569; Aortson v. Ridgeway, 157; People v. Gray, 72 111. 343; 18 111. 23; Jackson v. Wilcox, 1 Bostwick V. Skinner, 80 111. 147; Scam (111.) 344; Pease v. Roberts, People V. Seelye, 146 111. 189; Ex 16 111. App. 634. parte Burkhardt, 16 Tex. 470; 14 — Lockridge v. Foster, 4 Scam. Lyne v. Sanford, 82 Tex. 58; (111.) 569. APPOINTMENT AND QUALIFICATION OF GUARDIAN. 631 equity will relieve against.^'^ Wherever there is a relation which puts one party in the power of the other, a fidu- ciary relation exists.^^ Where no relation of confidence exists, suppressiO'Veri consists in suppressing those facts which one is under a legal obligation to communicate. Thus, the concealment of the minority of a feme covert, conveying in her own right, will be relieved against.^''' But where the owners of an estate in remainder decided to partition it, purchasing in the outstanding life estate, as the result of an agreement between themselves, undisclosed, it was held that the purchase was valid.^^ A con- veyance by a debtor, by way of gift, concealed from creditors with whom he effected a compromise, will not be disturbed where such conveyance was made anterior to incurring the indebted- ness.i^ Failure to disclose is of no importance where the infor- mation, although not revealed, was known to and acted upon by the other party.^o 708. Nomination of guardian — ^by court — ^by minor. Sec- tion 3 of the Guardian and Ward Act provides: "If a minor is under the age of fourteen years, the county court may nom- inate and appoint his guardian. If he is above that age, he may nominate his own guardian, who, if approved by the court, shall be appointed accordingly; if not approved by the court, or if the minor resides out of the State, or if, after being cited, he neglects to nominate a suitable person, the court may nominate and appoint his guardian in the same manner as if he was under the age of fourteen years: Provided, that in aR cases when a guardian has been appointed by the court while the minor was under the age of fourteen years, such minor, on attaining the age of fourteen years, may at his election nominate his own 15— Emmons v. Moore, 85 111. 18— Fish v. Cleland, 33 111. 238; 304; Watt v. McGalliard, 67 111. Cleland v. Fish, 43 111. 282. 19 — Jackson v. Minor, 101 III 550. 513; Davis v. Hamlin. 108 111. 39. 16 — Evans on Agency, 256; Kerr on Fraud and Mistake, 182, 183. 17 — Bryan and Morrison v. 20 — Whiteside v. Taylor, 105 111, Primm, 1 111. (Breese) 59. 496. 632 THE LAW OF ESTATES. guardian, who shall be appointed by the court if deemed a suit- able person, and the new guardian so appointed shall supersede the former one, whose functions shall thenceforth cease and de- termine; and it shall be the duty of the former guardian to de- liver up to his successor all the goods, chattels, moneys, title pa- pers and other effects belonging to such minor in like manner and subject to the same penalties as are provided in the fortieth (40th) section of this act, upon the removal, death or resigna- tion of a guardian. "21 Where the Probate Court appointed a guardian to two orphan minors, under the age of fourteen years, for the full time until they should respectively attain the age of eighteen years, held that the appointment was valid. And, admitting that the said minors might, under the statute, when they arrived at the age of fourteen years, choose a guardian for themselves, who would supersede the guardian so appointed by the Probate Court, still, in the event of their neglecting or refusing to choose a guardian for themselves, at the proper age, the guardian already appoint- ed by the Probate Court would continue to act in his office until the said minors attained their majority .22 709. Guardian — his duties — custody of minor — visitation of minor. Section 4 of the Guardian and Ward Act provides: **The guardian of a minor shall have, under the direction of the court, the custody, nurture and tuition of his ward, and the care and management of his estate ; but the parents of the minor, if living, and in case of the death of either of the parents, the surviving parent, they being respectively competent to transact their own business, and fit persons, shall be entitled to the cus- tody of the person of the minor and the direction of his educa- tion. The parents of a minor shall have equal powers, rights and duties concerning the minor. In case the father and mother 21— Section 3, chapter 64, nois, Vol. 2, p. 2076; Kurd's R. S. "Guardian and Ward." Starr & of 111., 1905, p. 1129. Curtis Annotated Statutes of Illi- 22— Young v. Lorain, 11 III. 625. APPOINTMENT AND QUALIFICATION OF GUARDIAN. 633 live apart, the court may, for good reason, award the custody and education of the minor to either parent or to some other per- son. Whenever any person or persons makes a settlement upon or provision for the support or education of any minor child, it shall be competent for the court, in case either the father or the mother of such child be dead, to make such order in relation to the visitation of such minor child by the person or persons so making such settlement or provision as shall to the court seem meet and proper.^^ The interest of the children should always be taken in consideration by the court, when deciding who shall have custody of orphans.^'* Where a decree of divorce is grant- ed for the fault of the husband, and the court thereby gives the custody of the child absolutely to the mother, such decree takes away, ipso facto, all control of the father over the child, until it is restored by the action of the proper court.^^ The mother's right to the custody of a child, in the absence of the fault of the father, does not arise during the father's lifetime, unless so or- dered by the court in a proper case.-^ As to the control of the person of the minor, the father is a quasi guardian by nature, and upon his death the mother.^^ 710. Testamentary guardian — estate — custody. Section 5 of the Guardian and Ward Act, provides : ' ' The father, being of sound mind and memory, of a child likely to be born, or of any living child, being a minor and unmarried, may, by his last will, dispose of the custody and tuition of such child, to continue during its minority, or for a less time: Provided, no such will shall take effect to deprive the mother, during her life, of the custody and tuition of the child, without her consent, if she be a 23— Section 4, chapter 64, Zi—In re Smith, 13 111. 138. "Guardian and Ward." As amend- 25-Wilkinson v. Deming. 80 111. ed by act approved April 18, 1901. 049 In force July 1, 1901. Law of 1901, p. 216. Starr & Curtis An- 26-Holson v. Fullerton, 4 111. App. 282. 21 1905, p. 1129. 519. notated Statutes of Illinois, Vol. 2. p. 2077; Kurd's R. S. of 111., 27— Perry v. Carmichael, 95 111. 634 THE LAW OF ESTATES. fit and competent person to have such custody and tuition. The mother, being of sound mind and memory, and being sole, or surviving the father of her child, may, in like manner, dispose of the custodj'' and tuition of such child. ' '^s Section 6 of 4;he Guardian and Ward Act provides: "The guardianship of the infant's estate may be appointed to one, and the custody and tuition of the minor to another.^^ A, the testator, by his will, appointed his wife guardian of his infant daughter, "so long as she should remain his widow." After the death of A, his widow took out letters of guardianship for the daughter, from the Probate Court of the proper county under the appointment and order of that court by way of compliment to the will. The widow subsequently married B, and a payment on account of the estate of the ward was then made to her husband, B. Held, the authority of the father to name a guardian for his children, is greater than that conferred upon the Probate Court; and when the former has exercised the right, the latter cannot act. The appointment by the court was void for want of jurisdiction. The limitation in the will is strictly legal and must be enforced. The guardianship of the widow was terminated by her marriage to B, and at the time the payment was made to B, the authority of his wife to receive the money, as guardian to the complainant, had ceased; as completely so as if she had been removed by a court of competent jurisdiction. She had no more authority to receive the money than as if she had never been appointed guardian. The husband of a guardian has no right to possess or control the estate of the ward, and a payment to him on ac- count of such estate is void, unless with the express sanction or direction of the guardian; which in this case, at the time of the payment of the money did not exist, as the guardianship ceased on the marriage of the widow to B.*"^ "Where the custody of a 28 — Section 5, chapter 64, Starr & Curtis Annotated Statutes "Guardian and Ward." of Illinois, Vol. 2, p. 2077, and 29 — Section 6, chapter 64, cases cited; Kurd's R. S. of 111., "Guardian and Ward." As to 1905, p. 1130. statute references, notes 28, 29, see 30— Holmes v. Field, 12 111, 423. APPOINTMENT AND QUALIFICATION OF GUARDIAN. 635 child is given to the mother by a decree of divorce, for the father's fault, she may, by will, appoint a guardian for such child ; and when such guardian is not shown to be an unfit per- son, and the child expresses a desire to remain with such guard- ian, who is a relative and attached to the child, the court, on the application of the father, will not give him its custody .^^ A testator, by his will, appointed two of his sons executors, and directed and empowered them to sell all real and personal prop- erty belonging to the estate, except the homestead and household goods devised to his widow for life, and use the proceeds for the payment of legacies and for the support and education of the minor children, and also provided, that the executors should hold the estate in trust, except as otherwise provided, until the youngest child should become of age, and further declared: "I will that my executors pay out of my estate annually a sum which, together with that provided in section third hereof, is sufficient to clothe, educate and support my minor children until they become of lawful age: ^'Held, that the executors were made trustees of the estate, and, in effect, testamentary guardians of the minors, with the duty to clothe, educate and support them, and that while faithfully discharging such duty, the court had no rightful power or authority to require the executors to pay over any moneys to the statutory guardian of such minors for their support and education.32 711. Must qualify and give bond, where the same is not waived. The statute relating to guardians authorizes a parent to appoint a testamentary guardian for the custody and educa- tion of his minor child, and the custody of its property, or to give the custody and tuition of the minor to one and the custody of the property to another; but the guardian of the property is required to give a bond, as in other cases, unless this is dispensed with by the will and such must receive a commission from the County Court to act, and when such bond is not dispensed with, 31 — Wilkinson v. Deming, 80 32 — Capps v. Hickman, 97 III. 111. 342. 437, 438. 636 THE LAW OF ESTATES. such appointee will not become the guardian of the minor until he gives a bond as such, and is conmiissioned by the County Court. So if one appointed by will as executor and also as testamentary guardian, qualifies only in the former capacity, so that he is not a legal guardian, but nevertheless acts as such by loaning the funds of the estate, which he might have done as guardian had he qualified in that capacity, he will in equity be held liable to account as guardian ; and if he loans the funds of the estate as executor, in which capacity he has no au- thority to do so, and a loss occurs, he will be required to make it good on the settlement of his accounts before the County Court.33 712. The bond required. Section 7 of the Guardian and Ward Act, provides : ' ' The County Court shall take of the guard- ian appointed by it, a bond, payable to the People of the State of Illinois, with at least two sufficient sureties, to be approved by the court in a reasonable amount, which in no case will be less than double the amount of the minor's personal estate, and six times the amount of the gross annual income of the minor's real estate: Provided, however, that if such real estate is im- proved or is covered in whole or in part with timber, or is im- proved in part and in part covered with timber, the penal sum in said bond shall be increased by an amount at least double the value of the said improvements, or of said timber, or both as the case may be." The form of the bond being given by statute.^^ "Where, in an action on a guardian's bond, a copy of the bond is admitted in evidence which recites the guardianship and the names of the sureties, such recitals are sufficient evidence of the appointment of the guardian. An order of the Probate Court 33 — Wadsworth v. Connell, 104 "Guardian and Ward." As amend- Ill. 369; Gilbert v. Guptill, 34 111. ed by act approved May 21, 1877. 112; Mclntyre v. People, 103 111. In force July 1, 1877. Laws of 142; Davis v. Harkness, 1 Gilm. 1877, p. 114. Starr & Curtis An- (111.) 173. notated Statutes of Illinois, Vol. 34 — Section 7, chapter 64, 2, p. 2078, and cases cited; Kurd's R. S. of 111., 1905, p. 1130. APPOINTMENT AND QUALIFICATION OF GUARDIAN. 637 finding the amount due from a ^lardian to his ward is con- clusive upon the guardian and the sureties on his bond in an ac- tion of debt on the bond, and can only be impeached for fraud or mistake.3^ And also, where suit is brought on bond against several sureties and one of such appears, contests the suit, and appeals, and the other co-sureties do not, the one contesting can- not assign errors for those not contesting on appeal.^^ And so a contribution from co-sureties may be recovered, where one of several sureties upon a guardian bond is forced to pay a judg- ment recovered on such bond in full. He may recover from each of the several co-sureties a pro rata share of the sum paid under such judgment with interest from the date of payment; and the insolvency of one or more of the sureties cannot operate to increase the amounts recoverable against such as are sol- vent.3'^ Where an order of the Probate Court required the guardian to give bond and security, A signed such supplemental bond as surety. Held, the surety on the supplemental bond be- came liable as an original obligor.^* And the sureties on the original bond are liable where the court requires the guardian to give special bond.^^ 713. Limitation. Actions on bonds must be commenced within ten years next after the cause of action accrues under the statute of "Limitations" and that statute also applies to repre- sentatives where the action survives, and to infants and others under disability. But in equity in case of fraud, from the time the fraud was discovered, or might have been discovered by due 35— Ryan v. People, 165 111. 143; 37— Moore v. Bruner, 31 111. Blackburn v. Bell, 91 111. 434; App. 400. Gillett V. Wiley, 126 111. 310; 38— Ammons v. People, 11 111. Neihofe V. People, 171 111. 246, 7. 247. 39— Warner v. People, 57 111. 36 — Richards v. Greene, 78 111. 202. See section 13, chapter 103, 525; Hendrickson v. Van Winkle, "Official Bonds" Starr & Curtis 21 111. 274; Horner V. Zimmerman, Annotated Statutes of Illinois, 45 111. 14; Cromine v. Tharp, 42 Vol. 2, p. 2835; Kurd's R. S. of 111. 120; Ryan v. People, 165 111. 111., 1905, p. 1419. 143-146. 63S THE LAW OF ESTATES. diligence.^ ^ But failure of due diligence may be excused if the relation of trust exists.*^ A claim against a guardian's estate for money coming into the deceased guardian's hands belonging to his wards, is not barred within five years after the majority of the wards. The claim will not be barred so long as an action may be brought upon the guardian's bond, to enforce its recovery.*^ The citation of a surety upon a guardian's bond, tAventy- one years after the ward became of age, to state his knowledge of the guardianship account, the guardian in the meantime hav- ing died, does not revive a right to recover from such surety any unpaid balance.*^ A claim presented against the estate of a deceased guardian thirteen years after the claimant became of age and where most of the funds received by the deceased guard- ian, under the claim sought against his estate, was received before his appointment as guardian, it was held such claim was barred by the Statute of Limitations.** 714. Powers and duties of testamentary guardian. Section 8 of the Guardian and Ward Act, provides: "A testamentary guardian shall have the same powers and perform the same du- ties within the scope of his appointment, as a guardian appointed by the County Court. "^^ 715. Testamentary guardian — commission — bond. Section 9 of the same act provides: **A testamentary guardian, except 40— Gillett V. Wiley, 126 111. 310. tions." Starr & Curtis Annotated 41 — Same as note 40. Statutes of Illinois, with Jones & 42 — Scheel v. Eidman, 77 111. Addington's Supplements thereto, 304. Vol. 2, pp. 2621, 2631, 2640, and 43 — People v. Stewart, 29 111. cases cited under sections of stat- App. 441. ute noted; Vol. 4, pp. 809, 811, and 44 — Beers v. Meyers, 28 111. App. cases cited; Hurd's R. S. of 111., 648; and see Brooks v. People, 15 1905, pp. 1332, 1333, 1334. 111. App. 570; Winslow v. People, 45 — Section 8, chapten 64. 17 111. App. 222; Carter v. Tice, "Guardian and Ward." Starr & 120 111. 277. See sections 10, 16, Curtis Annotated Statutes of Illi- 21, chapter 83, entitled "Limita- nois, Vol. 2, p. 2079; Hurd's R. S. of 111., 1905, p. 1130. APPOINTMENT AND QUALIFICATION OF GUARDIAN. 639 for the custody and tuition of the minor, shall, before he can act, be commissioned by the County Court of the proper county and give the bond prescribed in section 7 of this act — except, that when the testator has requested in his will that a bond be not required, it shall not be required unless, from a change in the situation or circumstances of the guardian, or for other suf- ficient cause, the court shall deem it necessary to require it. ' '^^ 716. Appointment — hearing — bond. Section 10 of the same act, provides: "Upon application being made for the appoint- ment of a guardian, unless the proper persons are before it, the court shall assign a day for the hearing thereof, and shall direct such notice of the hearing to be given to the relatives of the minor, residing in the county, as he shall, on due inquiry, think reasonable. When any person shall at the same time be ap- pointed guardian for several minors, the court may, if the es- tate shall be so situated as to make it more convenient or ad- vantageous to the interest of the ward, include all in one J)ond.47 717. Suit on bond. Section 11. "Bonds may be put in suit in the name of the People of the State of Illinois, to the use of any person entitled to recover on a breach thereof, and dam- ages assessed and proceedings had thereon, as other cases of penal bonds. "'^s Where a guardian's bond signed by one surety was presented to the court with the minor's petition nominating a guardian, the court being of opinion that one surety was not sufficient handed the bond back to obligator. Later the signa- 46 — Section 9, chapter 64, 48 — Section 11, chapter 64, "Guardian and Ward." Starr & "Guardian and Ward." Starr & Curtis Annotated Statutes of Uli- Curtis Annotated Statutes of Illi- nois, Vol. 2, p. 2079; Kurd's R. S. nois, with Jones & Addington's of 111., 1905, p. 1130. Supplements thereto. Vol. 2, p. 47— Section 10, chapter 64, 2079; Vol. 4, p. 668, and cases cited "Guardian and Ward." Starr & under section of the statute Curtis Annotated Statutes of Illi- noted; Kurd's R. S. of 111., 1905, nois. Vol. 2, p. 2079; Kurd's R. S. p. 1130. of 111., 1905, p. 1130. 640 THE LAW OF ESTATES. tures of two additional sureties were obtained, and the sureties were pronounced satisfactory, the judge saying, "That is all right." The bond was handed the judge, who at the request of the sureties handed the bond to them, they taking it away to get another signature. In this they were unsuccessful, and nothing further was shown as to the whereabouts of the bond. Soon af- ter and before the guardian's appointment, one of the sureties died. Held, there was not a delivery of the bond in the lifetime of the surety. If there was no delivery before the death of the surety, it is clear there could be no delivery afterwards, which would render the bond obligatory upon him or his legal repre- sentatives. ^^ If a guardian neglects or fails to enforce the security on a loan of his ward 's money until the remedy is barred by the Stat- ute of Limitations, his bondsmen are liable to the ward for such neglect.^" 718. Inventory — form of same. Section 12 of Guardian and Ward Act, provides: "The guardian shall, within sixty days after his appointment, or if the court is not in session at the ex- piration of that time, at the next term thereafter, return to the court a true and perfect inventory of the real and personal estate of the ward, signed by him and verified by his affidavit. As often as other estate shall thereafter come to his knowledge, he shall return an inventory thereof, within sixty days from the time the same shall come to his knowledge." Section 13. "The inven- 49 — Brooks v. People, 15 111. rule, constituting the delivery of App. 570; and to the point, a bond a deed, which may be analogous, to be valid must be delivered dur- see Bryan v. Wash, 2 Gilm. (111.) ing the lifetime of the principal. 557; Gunnell v. Cockerill, 79 111. Huey V. Huey, 65 Mo. 689; Jack- 79; Bayers v. Spencer, 101 111. son V. Leek, 12 Wend, 106; Jack- 429. son V. Phipps, 12 John, 418; Cook 50 — Winslow v. People, 17 111. V. Brown, 34 N. H. 460; Miller v, App. 222; Dobbins v. First Na- Physick, 24 Ark. 244; Jackson v. tional Bank, 112 111. 553; see also Rowland, 6 Wend, 666; Prutsman for special breaches of bond, Gil- v. Baker, 30 Wis. 644. As to the bert v. Guptill, 34 111. 112; Peo- ple V. Steele, 7 111. App. 20 APPOINTMENT AND QUALIFICATION OF GUARDIAN. 641 tory shall describe the real estate, its probable value and rental, and state whether the same is encumbered, and, if encumbered, how and for how much, what amount of money is on hand, and contain a list of all personal property, including annuities and credits of the ward, designating them as ' ' good, " ' ' doubtful ' ' or "desperate," as the case may be.^^ Section 14 requires the guardian to make and settle his account at the expiration of a year from his appointment and as much oftener as the court may require,52 Section 15 provides that a guardian, at the expiration of his trust, shall pay and deliver to those entitled thereto "all the money, estate and title papers in his hands as guardian, or with which he is chargeable as such. ' '^^ 51 — Sections 12, 13, Chapter 64, sections of statute cited in notes "Guardian and Ward." 51, 52 and 53, see Starr & Curtis 52 — Section 14, chapter 64, Annotated Statutes of Illinois, "Guardian and Ward." Vol. 2, p. 2080, and cases cited un- 53 — Section 15, chapter 64, der sections 14 and 15, noted; "Guardian and Ward." As to Kurd's R- S. of 111., 1905, p. 1131. 41 CHAPTER XL PUBLIC GUARDIAN Sec. 719. Public County Guardian. 720. To take oath, form of same. 721. When such guardian fails to qualify. Sec. 722. Public guardian, when ap- pointed by the court — powers and duties. 723. Bond of the public guardian. Sec. 719. Public county guardian. "The Governor of this State, by and with the advice and consent of the Senate, shall, before the first Monday in December, eighteen hundred and eighty-nine, and every four years thereafter, appoint in each county of this State, and as often as any vacancies may occur, a suitable person, to be known as public guardian of such coun- ty, who shall hold his office for four years from the first Monday of December, eighteen hundred and eighty-nine, or until his suc- cessor is appointed and qualified, "i 720. To take oath, form of same. Section 2. "Every per- son appointed as a public guardian shall, before entering upon the duties of his office, take and subscribe and file in the office of the clerk of the County Court the following oath, to-wit : I do solemnly swear (or affirm as the case may be) that I will support the Constitution of the United States and the Constitution of the State of Illinois, and that I will faithfully discharge the duties of public guardian of county, according to the best of my ability. "^ 721. When such guardian fails to qualify. Section 3. "Whenever any guardian, appointed under the provisions of 1— Par. 53, section 1, chapter 2096; Kurd's R. S. of 111., 1905, p 64, "Guardian and Ward." An act 1135. approved June 3, 1889. In force 2 — Par. 54, sec. 2, chapter 64, July 1, 1889. Law of 1889, page "Guardian and Ward." Starr & 165. Starr & Curtis Annotated Curtis Annotated Statutes of Illi- Statutes of Illinois, Vol. 2, p. nois, Vol. 2, p. 2097; Kurd's R. S. of 111., 1905, p. 1135. 642 PUBLIC GUARDIAN. 643 section three (3) of the act entitled 'An act in regard to guard- ians and wards, ' approved April 10, 1872, in force July 1, 1872, shall fail to qualify as such guardian at the expiration of three months from his or her appointment, it shall be the duty of the court to appoint the public guardian of the county where the minor resides, as guardian of the minor. "^ 722. Public guardian — ^when appointed by the court. Sec- tion 4. The public guardian, when appointed by the court, as provided in this act, shall have the same powers and his duties shall be the same as of guardians appointed under the provisions of section three of the act entitled "An act in regard to guard- ians and wards," approved April 10, 1872, in force July 1, 1872.4 723. Bond of the public guardian. Section 5. '*It shall be the duty of the County Court to require of a public guardian, before entering upon the duties of his office, to enter into a bond, payable to the People of the State of Illinois, in a sum of not less than five thousand dollars, with two or more securities, approved by the court, and conditioned that he will faithfully discharge all the duties of his office, and the court may, from time to time, as occasion may require, demand additional security of such guardian, and may require him to give the usual bond required of guardians in other cases, and in default of giving such bond within sixty days after receiving his commission, or in default of giving additional security within such time as the court may fix after being duly ordered by said court so to do, his office shall be deemed vacant, and upon the certificate of the county judge of such fact, the Governor shall fill the vacancy aforesaid. ' '^ 3 — Par. 55, sec. 3, chapter 64, Curtis Annotated Statutes of Illi- "Guardian and Ward." Starr & nois. Vol. 2, p. 2097; Kurd's R. S. Curtis Annotated Statutes of Uli- of 111., 1905, p. 1135. nois. Vol. 2, p. 2097; Kurd's R. S. 5 — Par. 57, sec. 5, chapter 64, of 111., 1905, p. 1135. "Guardian and Ward." Starr & 4 — Par. 56, sec. 4, chapter 64, Curtis Annotated Statutes of Uli- "Guardian and Ward." Starr & nois, Vol. 2, p. 2097; Kurd's R. S. of 111., 1905, p. 1136. CHAPTER XLI DUTIES AND POWERS OF GUARDIANS Sec. 724. Duties and powers of guar- dians. 725. Statutory powers. Appear- ance for ward in suit. 726. Suits by, for or against wards, guardians, next friend. Sec. 727. The power to contract how far binding on the ward and his estate. 728. Management by guardian of ward's estate. His duties. Education of ward. Ward put out and educated. 729. Investments guardian's duty. Sec. 724. Duties and powers of guardians. The common law duties and powers of guardians still continue in this State, except as modified or superseded by statutory enactments.^ We 1— Wright V. Cornley, 14 111. App. 551; Bond v. Lockwood, 33 111. 212; Bailey v. Bailey, 115 111. 551; Hayes v. Mass. Life Ins. Co., 125 111. 626; Schmidt v. Shaver, 196 111. 115; Schouler's Domestic Relations pp. 461, 462. In Bailey V. Bailey, supra, a decree was en- tered for the payment of money to the guardian of a minor, and the minor had no guardian at the time the decree was entered. Held, such decree will not be erroneous merely from that fact; for in such case the money can not be paid until a guardian shall be appoint- ed and qualified. In the same case it is also held: Where a minor by his guardian and attor- ney files his bill, claiming title to certain lands, he should present the grounds showing his rights, and if he does not, he will not be advantage of his omission. If the first bill is dismissed, the adjudi- cation will estop him from again seeking to recover the same prem- ises on other and different grounds not presented in the first suit. In the early case of Bond v. Lockwood, supra, it is held: The statute respecting guardians and wards was not designed and did not constitute a complete code, and that the purpose of the legislature was to confer upon the probate court the power to ap- point guardians, and to regulate their conduct according to the common law. The decision in that respect has been consistently fol- lowed. In Hayes v. Massachusetts Mutual Life Insurance Co. supra, it is lield: A guardian, under the statute of Illinois, has no power to compound or compromise in re- allowed in a second suit to take spect of his ward's rights, where- 6U DUTIES AND POWERS OF GUARDIANS. 645 have heretofore shown the duties of guardians as to the custody and visitation of minors, prescribed by statute relating to "guardian and ward," his control of the estate of the minor and his custody of the person. We have also shown that a testa- mentary guardian has the same powers and performs the same duties, within the scope of his appointment, as a guardian ap- pointed by the Court of Probate.- The duty of the guardian to file an inventory, and make settlement and account as prescribed by the Guardian Act.^ But aside from the statute, the common law duties of the guardian are numerous, as regards the management of the estate of his ward; he should keep down unnecessary expense and incumbrances on the property of his ward ; and generally in paying out the money of his ward should be careful as to the purpose for which the payment is made. It is his duty to keep property insured from loss by fire, pay taxes, make reasonable repairs and generally prevent waste, and per- form such other acts and duties as the court may sanction and approve within the scope of his office and under the law tending to preserve the estate of his ward.* 725. Statutory powers — appearance for ward in suit. Sec- tion 17 of the Guardian and Ward Act provides: *'The guardian by a less sum than is due is ac- ward is in pressing need of funds, cepted, except under the appro- the county court may order the bation or direction of the county guardian to sell the judgment for court, and if he does, his act will a price which it finds to be a not bind his ward, and the ward good one. See also 15 Am. & Eng. may disaffirm it. In Schmidt v. Ency. of Law, 2d ed., p. 56, and Shaver, supra, it is held: So far cases cited in support of powers as our statutes prescribe the of guardian in text, powers and duties of guardians 2 — Ante, 709, 714. they supersede the common law, 3 — Ante, 718. but the common law power of 4 — Longwith v. Riggs, 123 111. guardians still exists when con- 264; Wright v. Comley, 14 111. sistent with statute. And where App. 551; Means v. Earles, 15 111. it is shown to the probate court App. 273; Hayes v. Mass. Mut. by a guardian that a judgment in Life Ins. Co., 125 111. 626; Field favor of his ward cannot be col- v. Herrick, 101 111. 115; Kings- lected at that time and that the bury v. Sperry, 119 111. 280; Bai- ley V. Bailey, 115 111. 551. 646 THE LAW OF ESTATES. shall settle all accounts of his ward, and demand and sue for, and receive in his own name as guardian, all personal property of and demands due the ward, or, with the approbation of the court, compound for the same, and give a discharge to the debtor upon receiving a fair and just dividend of his estate and ef- fects." Section 18 provides: "He shall appear for and repre- sent his ward in all legal suits and proceedings, unless another person is appointed for that purpose, as guardian or next friend, but nothing contained in this act shall impair or affect the power of any court or justice of the peace to appoint a guardian to de- fend the interest of a minor impleaded in such court, or inter- ested in a suit or matter therein pending, nor their power to ap- point or allow any person as next friend for a minor to com- mence, prosecute or defend any suit in his behalf : Provided, that any suit or proceeding may be commenced and prosecuted by any minor by his next friend, without any previous authority or appointment by the court, on such next friend entering into a bond for costs, and filing the same in the court in which, or with the justice of the peace before whom such suit or proceeding is instituted. ' ''^ 726, Suits by, for or against wards — guardians — next friend. Suits for wards must be in name of ward, by their guardian or next friend.^ The appointment of a guardian ad litem, need not be predicated upon judicial finding of infancy or insanity.'' A disinterested person only is qualified as guardian ad litem; and such should be appointed to represent minors' interests.^ 5 — Sections 17 and 18, chapter in each volume; Kurd's R. S. of 64, "Guardian and Ward." As 111., 1905, p. 1131; see also Fil- amended by act approved April more v. Weeks, 12 Colo. 239. In 10, 1881. In force July 1, 1881. which state the statute is simi- Laws of 1881, p. 98. Starr & Cur- lar to that of Illinois, tis Annotated Statutes of Illinois, 6 — Hoare v. Harris, 11 111. 24; with Jones & Addington's Supple- Bowles v. Allen, 16 111. 30. ments thereto, Vol. 2, pp. 2082, 7— Pyott v. Pyott, 191 111. 280. 2083; Vol. 4, p. 668, and cases 8 — Linebaugh v. Atwater, 173 cited under the sections of statute 111. 616; Phillips v. Phillips, 185 111. 631. DUTIES AND POWERS OF GUARDIANS. 647 If the general guardian, the guardian ad litem or the next friend, does not properly protect the interests of the ward, it is the duty of the court to compel such to do so.^ The next friend or guardian cannot by stipulation or admission surrender the rights of the infant ;^^ and such is unauthorized to waive a jury. 11 A guardian ad litem, who files an answer for infants is bound to exercise reasonable care, prudence and judgment; sub- mitting to the court all questions that may arise, and with the advice of the court, act under its direction.12 If the ward has not been served with process, the guardian has no power to enter the appearance of the ward in a suit against the latter.^'' Under section 18 of the Guardian and Ward Act a suit may be prose- cuted as a poor person.^'* The bond for costs in a suit by a minor may be filed, by permission of the court, after the com- mencement of suit.i^ The bond required by section 18 of the Guardian and Ward Act is not jurisdictional.^^ A guardian has authority to demand and sue, in his owti name to recover all per- sonal property and demands due his ward.^'' And it is within the guardian's power to make sale of personal property without the order of court, except where such sale is prohibited by stat- ute.is But no power is given the guardian under the statute to 9 — Lloyd V. Kirkwood, 112 111. An affidavit must be filed, as re- 329; Llnebaugh v. Atwater, 173 quired by statute, Kurd's R. S. of 111. 616. 111., 1905, p. 555. See also Tracy 10— Kingsbury v. Buckner, 134 v. Bible, 181 111. 333; Chicago & U. S. 650; Railroad Co. v. Haley, Iowa R. R. Co. v. Lane, 130 111. 170 111. 613. 116; 111. Cent. R. R. Co. v. Lati- 11 — Lieserowitz v. Railroad Co., mer, 128 111. 163; Consolidated 80 111. App. 253. Coal Co, v. Gruber, 188 111. 585. 12— Stunz V. Stunz, 131 111. 210. 15—111. Cent. R. R. Co. v. Lati- 13 — Dickison v. Dickison, 124 mer, 28 111. App. 552. 111. 483. 16— Railroad Co. v. Keck, 185 li— Ante, 724; see Starr & Cur- 111. 405; Consolidated Coal Co. v lis Annotated Statutes of Illinois, Gruber, 188 111. 585. with Jones & Addington's Supple- 17 — Muller v. Benner, 69 UL ments thereto, Vol. 1, p. 1071; Vol. 109; Independent Order, etc., v. 4, p. 342 and cases cited in each Stahl, 64 III. App. 316. volume under section of statute. 18 — Schmidt v. McDean, 98 IlL App. 424. 648 THE LAW OF ESTATES. bring suits in relation to the real estate of his ward. He cannot maintain ejectment in his own name for his ward's lands; suit should be brought in the name of the ward, who in such case holds the title.^^ But where a guardian recovers a judgment as such, and takes a conveyance of land to himself, in satisfaction thereof, his ward may, on attaining his majority, take the land or charge his guardian with the amount of the judgment and ac- crued interest, at his election, and if, within a reasonable time after coming of age, he elects to take the land, a court of equity will enforce a conveyance of the legal title to him.20 A testator gave to his widow, by his will, money and the rents and profits of land, in lieu of dower, incumbered with the provision that she should maintain and support his children. The widow re- nounced the provisions of the will, had dower assigned, and mar- ried again. Suit was brought against the guardian by the second husband to recover for board and clothing furnished the ward. Held, the guardian may prove that the wards have worked for the plaintiff, and the value thereof, and set it off against his claim.2i Infants cannot be deprived of rights by any agreement as to validity of title.22 An infant is also incapable of making an admission which would affect his rights; and his admissions cannot be used against a third person who assumes to stand as his trustee. 23 727. The power to contract — 5iow far binding on the ward and his estate. A guardian cannot, by his own contract, bind the person or estate of his ward; but if he promise, on a sufficient consideration, to pay the debt of his ward, he is personally bound by his promise, although he expressly promises as guar- dian. And it is sufficient consideration, if such promise dis- charge the debt of the ward; and a guardian who thus dis- 19— Muller v. Benner, 69 111. 22— Jolly v. Graham, 222 111. 109. 550. 20 — Padfield v. Pierce, 72 111. 23— Baker v. Hamilton, 3 Colo. 502; Jolly v. Graham, 222 111. 550. 291. 21— Meyer v. Temme, 72 111. 574. DUTIES AND POWERS OF GUARDIANS. 649 charges the debt of his ward, may lawfully indemnify himself out of the ward's estate; or, if he be discharged from his guar- dianship, he may have an action against the ward for money paid for his use.^* But the contract must be consummated and binding on the guardian; a mere negotiation for a loan as guardian, where no money passes, will not be enforced in equity on the contract, even when the guardian gives his own notes, and contracts to give a mortgage on the ward's land.^s The guardian has no power to contract to sell or convey the real estate of his ward.-" AVhere a guardian has ward laboring in his interest, and rendering the guardian services, he is not permitted to charge the ward with board furnished by him as guardian, unless he credits the ward with the value of his services.^^ Where a ward, shortly after arriving at age, was induced by a guardian, and before settlement of his accounts, to convey to him, real estate for the express consideration of $1,300, he pay- ing the ward but $600, and representing that indebtedness amounting to $700 was existing against the land, when such was not the ease, it was held, that as the conveyance was made upon a misapprehension of facts induced by the guardian, the transaction could not be sanctioned in equity.^s But the rule is well settled, that a valid contract may be made between gaiar- dian and ward shortly after the ward attains his majority, where it appears a full consideration had been paid, and no undue influence had been exerted.^^ We have heretofore and under different heads cited many cases, where the guardian by fraud or undue influence had imposed upon the ward before and after majority and in every such a case a court of equity will set such transaction aside. As a general rule, the father is en- 24 — Parsons on Contracts, Vol. 26 — Boughton v. Cameron, 99 1, p. 136; Sperry v. Fanning, 80 111. App. 604. 111. 371; Cunningham v. R. R. Co., 27— Hazelrigg v. Pursley, 69 111. 77 111. 179. App. 472. 25— Noble v. Runyan, 85 111. 28— Wickiser v. Cook, 85 111. 69. 618; Field v. Herrick, 101 111. 115; 29 — Reeve's Domestic Relations, Nichols V. Sargent, 125 111. 309. p. 475; Wickiser v. Cook, 85 111. 69. >^ 650 THE LxUV OF ESTATES. titled to the earnings of a son during minority ; but where a mi- nor son contracts on his own account, for his services, with the knowledge of his father, who makes no objection, there is an im- plied assent, that the son shall be entitled to his eamings.^^ Ex- ecutory contracts of infants are voidable and not binding upon them, unless ratified after reaching majority. But there is an exception to this rule, where necessaries are contracted for un- der certain circumstances and where the minor does not live with his parents.^i 728. Management by guardian of war-i's estate — ^his duties — education of ward — ward put out and educated. Section 19 of the Guardian and Ward Act, provides: "The g-uardian shall manage the estate of his ward frugally and without waste, and apply the income and profit thereof, so far as the same may be necessary, to the comfort and suitable support and education of his ward." Section 20. "The guardian shall educate his ward, and it is made the duty of all civil officers to give infor- mation of any neglect of the guardian to his ward." Section 21. "When there is not money of the ward sufficient to teach him to read and write, and the elementary rules of arithmetic, and the guardian fails or neglects to have him so educated, the court shall have power to put out the ward to any other person for the purpose of having him so educated. "^^ The common law powers still exist in Illinois where not changed or modified by statute f^ and the statutory enactments, with the aid of the court, will enable a guardian to meet every duty in the management of his ward's estate that may arise during his term of office. But he cannot delegate his powers, he must perform them.^^ The 30— Birdsall v. Waggoner, 4 2085, 2086; Vol. 4 p. 668; Vol. 5. p. Colo. 264. 284, and authorities cited on pages 31 — Hutchinson v. McLaughlin, of volumes noted; Kurd's R. S. 15 Colo. 429. of 111., 1905, p. 1131. 32— Sections 19, 20, chapter 64, 33— Schmidt v. Shaver, 196 111. "Guardian and Ward." Starr & 115, and see notes 1, 2, 3 and 4 Curtis Annotated Statutes of Illi- of this chapter, nois, with Jones & Addington's 34 — Mason v. Wait, 4 Scam. Supplements thereto, Vol. 2, pp. (111.) 127. DUTIES AND POWERS OF GUARDIANS. 651 husband of a ^ardian has no right to possess or control the estate of a ward, except by express direction of the court.''^ In order to obtain the ward's share of rents and profits in his estate, it is the guardian's duty to institute proceedings for the assignment of dower .ss And insure the ward's property against the risk of fire.^"^ 729. Investments — guardian's duty. Section 22 of the Guardian and Ward Act, provides : * ' It shall be the duty of the guardian to put and keep his ward's money at interest upon security to be approved by the court, or by investing, on ap- proval of the court, the same in United States bonds, or in the bonds of any county or city which are not issued in aid of railroads, and where the laws do not permit said counties or cities to become indebted in excess of five per cent of the assessed valuation of property for taxation therein, and where the total indebtedness of such County or City does not exceed five per cent of the assessed valuation of property for taxation at the time of such investment. Personal security may be taken for loans not exceeding one hundred dollars. Loans upon real estate shall be secured by first mortgage thereon and not to exceed one-half the value thereof. No mortgage loan shall be made for a longer time than five years nor beyond the minority of the ward: Provided, the same may be extended from year to year without the approval of the court. The guardian shall be chargeable with interest upon any money which he shall wrongfuUy or negligently allow to remain in his hands unin- vested after same might have been invested, "^s Loans upon real estate security made by the guardian, without the approval of court is at guardian's risk; if a loss occurs in such case, he 35— Holmes v. Field, 12 111. 38— Section 22, chapter 64, 424 ; Lehman v. Rothbarth, 111 111. "Guardian and Ward." As amend- 200. ed by act of May 13, 1905. In 36— Clark v. Burnside, 15 111. force July 1, 1905. See Kurd's R. 62. S. of 111. 1905, p. 1132. Laws of 37— Means v. Earls, 15 111. App. 1905, p. 287. 273. 652 THE LAW OF ESTATES. is liable; good faith will not exonerate him.^^ Investments of the ward's estate are governed by statute of this State and not by the common law,*** 39 — Hughes v. People, 111 III. Courts can not dispense with a 457. defective execution of power 40 — Lamar v. Micou, 112 U, S. created by law, or dispense with 452; Same v. Same, 114 U. S. 218; any of the formalities required Hayes v. Mass. Life Ins. Co., 125 thereby for its due execution, for 111. 626; Holeman v. Blue, 10 111. otherwise the whole policy of App. 130; Hughes v. People, 10 111. legislative enactments might be App. 148. overturned. Hunt v. School Dis- The guardian can not lawfully trict, 14 Vt. 300; 39 Am. Dec. give away his ward's right. Ed- 225; County of Hardin v. McFar- sall V. Vandemark, 39 Barb. 599; Ian, 82 111. 138; Tamm v. Lavalle, Bank v. Norton, 1 Hill, 576. 92 111. 270. HATER XLI LEASING, MORTGAGING AND SELLING REAL ESTATE BY GUARDIANS Sec. 730. 731. 732. 733. 734. 735, 736. 737. 738. Leasing real estate. Mortgage of real estate. Foreclosure of such mortgage. No strict foreclosure. The matter of jurisdiction un- der foreclosure of such mortgage. Act of guardian in borrowing money by leave of court is ministerial act. Foreclosure in United States Court of such mortgage. Bill of review. Proceedings to sell real es- tate. Requisites of petition, — filing. Sec. 739. Notice, practice, sale. 740. Return; sale approved, title. 741. Proceeds of sale; account, re- investment. 742. Non-resident guardian. Pow- ers to collect. 743. Transfer of real estate to non- resident guardian. 744. Conditions follow grant of au- thority to non-resident guar- dian. 745. Sale of real estate by non-resi- dent guardian. 746 Notice, terms of sale. 747. Deeds, title, bond for costs. Sec. 730. Leasing real estate. Section 23 of the guardian and ward act provides: ''The guardian may lease the real estate of the ward upon' such terms and for such length of time, not extending beyond the minority of the ward, as the County Court shall approve. "^ It is the duty of the guardian to lease such portion of the estate as is set apart to his ward; and the guardian and his estate, for a failure to lease is liable for what- ever might have been received by a faithful discharge of such duty.2 By statute of Illinois, the guardian has no power or right to take possession of the real estate of his ward; the title 1— Section 23, chapter 64, cited; Kurd's R. S. of 111., 1905, "Guardian and Ward." Starr & p. 1132. Curtis Annotated Statutes of Illi- 2— Clark v. Burnside, 15 111. 63. nois. Vol. 2, p. 2087, and cases 653 654 THE LAW OF ESTATES. to such or the interest if any, in the real estate is vested in the ward. The guardian as such in his own name has no right or authority to bring actions in relation to the real estate; his power over the real estate of the ward is limited to leasing the same "upon such terms and for such length of time as the County Court shall approve." Though this power is so limited, he may institute proceedings to assign dower to clear the way for renting of the ward's property and this is considered a duty in such case.^ A guardian who leases the lands of his ward without the approval of the court, cannot bind his ward; such transaction is void as to the latter.'* And where the guar- dian stipulated in the lease for the purchase of improvements put on the premises by the tenant, at the end of the term, and signed the lease, "as guardian" he bound himself personally, notwithstanding he proceeded with the approval of the County Court. His remedy, if any, is to be reimbursed by the ward in such case.5 There are no implied covenants in a lease made by a guardian ; express covenants, if any, will bind the guardian.^ 731. Mortgage of real estate. Section 24 of the same act, provides: "The guardian may, by leave of the County Court, mortgage the real estate of the ward for a term of years not exceeding the minority of the ward, or in fee, but the time of the maturity of the indebtedness secured by such mortgage shall not be extended beyond the time of minority of the ward."' Section 25. "Before any mortgage shall be made, the guardian shall petition the County Court for an order author- izing such mortgage to be made, in which petition shall be set out the condition of the estate, and the facts and circumstances 3— Muller v. Benner, 69 111. pp. 54; Hughes v. People, 10 111. App. 109, 110; McElheny v. Musick, 63 148. Ill, 328; Morgan v. Johnson, 68 5— Nichols v. Sargent, 125 111. 111. 190; Field v. Herrick, 101 111. 309. 110; Burton v. Cameron, 99 111. 6— Webster v. Conley, 46 111. 13. App. 604. 7 — Section 24, chapter 64, 4 — Field v. Herrick, 5 111. App. "Guardian and Ward." LEASING REAL ESTATE, ETC. 655 on which the petition is founded and a description of the prem- ises sought to be mortgaged."^ 732. Foreclosure of such mortgage — no strict foreclosure. Section 26. "Foreclosures -of mortgages authorized by this act shall only be made by petition to the County Court where let- ters of guardianship were granted or in case of non-resident minors, in the County Court in which the premises, or some part thereof, are situated, in which proceeding the guardian and ward shall be made defendants ; and any sale made by virtue of any order or decree of foreclosure of such mortgage may, at any time before confirmation, be set aside by the court for in- adequacy of price, or other good cause, and shall not be bind- ing upon the guardian or ward until confirmed by the court. Section 27 of the same act, provides: **No decree of strict fore- closure shall be made upon any such mortgage, but redemption shall be allowed as is now provided by law in cases of sales under executions upon common law judgments. ' '^ 733. The matter of jurisdiction under foreclosure of such mortgage. The probate courts provided for in the constitution, are courts of limited jurisdiction, and this jurisdiction em- braces four subjects: 1. All probate matters, embracing the settlement of the estates of deceased persons, and in that con- nection, cases for the sale of real estate of deceased persons for the payment of their debts; 2. The appointment of guar- dians and the settlement of their accounts; 3. The appointment of conservators, and the settlement of their accounts, and 4. All matters relating to apprentices.^^* In a mandamus proceed- ing, it is said: "It is evident that in 1873, when this mortgage 8 — Section 25, chapter 64, 9 — Section 26, chapter 64, "Guardian and Ward." See as to "Guardian and Ward." Starr & statute reference, notes 7 and 8, Curtis Annotated Statutes of Illi- Starr & Curtis Annotated Statute nois, Vol. 2, pp. 2088, 2089, and of Illinois, Vol. 2, pp. 2087, 2088, cases cited; Kurd's R. S. of 111., and cases cited; Kurd's R. S. of 1905, p. 1132. Law of 1869, p. 372, 111., 1905, p. 1132. Sec. 2. 10—96 111. 377. 656 THE LAW OF ESTATES. was made, the County Court of Cook county had jurisdiction of the foreclosure of such mortgages, and that such jurisdiction still remains in that court, unless it has been otherwise pro- vided by the general law; for, by section 4 of the schedule to the constitution, it was provided that "the County Court shall have the same power and jurisdiction that they now possess, until otherwise provided by general law." .... In 1877 when the Probate Court was created, the jurisdiction over the foreclos- ure of such mortgages was not regarded as any part of ' ' probate matters, "or of " the settlement of the estates of deceased persons, ' ' or as embraced within the powers of the County Court in re- lation to "the appointment of guardians," and the supervision of guardians in the discharge of their duties; for no one ever thought of instituting proceedings of foreclosure before the County Court, until the passage of the act especially authoriz- ing that to be done, in 1869."^^ And again we have the ex- pression of the court of last resort where it is said: Where the statute confers on the County Court a jurisdiction un- known to the common law, and gives an appeal from the judg- ments and final orders of that court, under such statutory jurisdiction, to the Circuit Court, a writ of error will not lie from the Supreme Court to review the action of the County Court.^- The foreclosure of a mortgage, and, much less, the giving of leave by the County Court to a guardian to mortgage his ward's lands, does not involve a freehold, within the mean- ing of the section relating to appeals and writs of error.^^ And section 12 of the act establishing Probate Courts, relating to writs of error, it is held, is prospective only in its operation, and applies only to decrees and orders of that court, and does not authorize a writ of error to review a decree or final order of the County Court for the mortgage or sale of a ward's land 11 — People V. Loomis, 96 111. Co. v. Hall, 94 111 152; Pinneo, et 377. al, V. Knox, 100 111. 471; Akin v. 12— Kingsbury v. Sperry, 119 Cassiday, 105 111. 22; Schaeffer v. 111. 279. Burnett. 221 111. 315. 13 — See Grand Tower Manfg. LEASING REAL ESTATE, ETC. 657 by a guardian.!* But the right to foreclose such a mortgage in the United States court, where the requisite citizenship ex- ists and the amount involved is within that jurisdiction, is not affected by such statute; that court has jurisdiction notwith- standing such statute.! 5 734. Act of guardian in borrowing money by leave of court is ministerial act. In the case of mortgaging the ward 's estate, no title passes until after decree of foreclosure, sale and con- firmation thereafter. No fact under the statute is required to be adjudicated before making the order. The power is given to the guardian, simply, by leave of the court, to perform the minis- terial act of borrowing money and executing a mortgage. It might have been vested in the guardian absolutely, without con- sulting the court, or it might have been vested in some other individual.!® "Judicial power is only invoked when a fore- closure is sought, and then, the ward has all the rights that he can legally assert. And the act, itself in ordering, that the guar- dian have leave to mortgage, though by a court, is the exercise of a ministerial, and not of a judicial, power, and therefore pre- cludes the right to a writ of error.! '^ "No writ of error can be brought but on a judgment, or an award in the nature of a judgment."!^ It is held, under certain circumstances the County or Probate Court, exercising a chancery power in that respect, is empowered to authorize a guardian to borrow money for the prevention of irreparable injury to the estate, and in such case the statute authorizes the court to empower the guar- dian to mortgage the real estate of the ward. But the money borrowed under such order, can only be applied to the purpose for which the authority was given. And so if a mortgage be 14 — A7ite, chapter 1, sec. 13; 16 — Cooley's Const'l Lim. 1st Kingsbury v. Sperry, 119 111. 279. ed., 98, 99. 15 — Davis V. James, 10 Biss, 17 — 2 Tid's Practice, 3d Am. ed., 51; United States Mortgage Co. v. 1140, 1141. Sperry, 24 Fed. Rep. 838; Same 18 — Kingsbury v. Sperry, 119 V. Same, 138 U. S. 313; Same v. 111. 285; Kingsbury v. Powers, 131 Same, 26 Fed. Rep. 727; Lynn v. III. 194. Lynn, 160 111. 314. 42 658 THE LAW OF ESTATES, executed by the guardian upon the ward's lands, without the sanction of the court, such mortgage is nugatory and void, so far as the interests of the ward are involved.^® 735. Foreclosure in United States court. Borrowing money to build upon and improve ward's estate by a guardian who gave mortgage was sustained. The Probate Court of Cook county authorized the guardian to borrow the money and execute the mortgage, which was foreclosed in the Federal Court, and it was held, the right to redeem is implied though not mentioned in a mortgage given by guardian.20 736. Bill of review. A ward may, before bill to foreclose a mortgage given by his guardian, maintain his bill in equity to review the order of the County Court granting leave to give such mortgage, and thereby take advantage of every objection that might be urged on writ of error. 21 And so this right ex- ists to have the entire proceedings reviewed, on bill to foreclose such mortgage by the ward.22 But in such case the guardian is treated as a trustee and is entitled to be reimbursed for all his costs and expenses in accounting. And if both parties are materially in fault, the expenses should be borne equally.^^ And in a proceeding to foreclose such a mortgage the validity of the mortgage and notes may be questioned.^* 737. Proceedings to sell real estate. Section 28 of the Guardian and Ward Act, provides: ''On the petition of the guardian the County Court of the county where the ward re- sides, or if the ward does not reside in the State, of the county where the real estate, or some part of it is situated, may order the sale of the real estate of the ward, for his support and 19 — Merritt v. Simpson, 41 111. 22 — Kingsbury v. Powers, 131 391. 111. 182. 20 — United States Mortgage Co. 23 — Kingsbury v. Powers 131, V. Sperry, 138 U. S. 313. 111. 182-196; Kingman v. Harmon, 21— Kingsbury v. Sperry, 119 32 111. App. 529. 111. 279. 24— Deland v. Metzger, 21 111. App. 89. LEASING REAL ESTATE, ETC, 659 education, when the court shall deem it necessary, or to invest the proceeds in other real estate or for the purpose of otherwise investing the same: Provided, the said County Court shall make no order for a sale under said petition until the said guardian shall have executed and filed a bond, payable to the People of the State of Illinois, with at least two sufficient sureties to be approved by the court, in dou- ble the value of the real estate by said petition sought to be sold, conditioned for the due and faithful accounting for, and disposition of the proceeds of all real estate that may be sold by him, under such order, in the manner provided by law; which bond may be put in suit in the name of the People of the State of Illinois, to the use of any person entitled to recover on a breach thereof, and damages assessed and proceedings had thereon as in other cases of penal bonds. "^^ The guardian has no power to sell real estate of his ward unless authorized by court.2^ And in this regard the guardian must follow the di- rections of the court.^'^ The proceeding is purely statutory, and the requirements of the statute must be followed, a ma- terial deviation is fatal to the jurisdiction of the court.^^ Where a petition was filed by a guardian for leave to sell the real estate of his ward, for the sole purpose of paying off a mortgage on the property, the lower court having granted an order for sale, the case was taken on appeal by the wards to the Supreme Court, and by that court reversed. It being held, in such case the proceedings should not be sustained, unless there is something shown in the petition, more than the mere 25 — Section 28, chapter 64. 1132. See also section 44, chapter "Guardian and Ward." As amend- 41, "Dower Act" {ante 630) Starr ed by act approved May 21, 1877. & Curtis, etc.. Vol. 2, p. 1479; In force July 1, 1877. Laws, 1877, Kurd's, 1905, p. 772. p. 114. Starr & Curtis Annotated 26 — Mason v. Wait, 4 Scam, Statutes of Illinois, with Jones & (111.) 127. Addington's Supplements thereto, 27 — Lloyd v. Malone, 23 111. 43; Vol. 2, p. 2089; Vol. 5, p. 284, and Fitzgibbon v. Lake, 29 111. 165; cases cited under section of stat- Spring v. Cane, 86 111. 580. ute; Kurd's R. S. of 111. 1905, p. 28— Spellman v. Dowse, 79 111. 66. 660 THE LAW OF ESTATES. opinion of the guardian, and by which the court can see, that a sale would be more advantageous to the interest of the wards, than a sale upon the foreclosure of the mortgage.^^ 738. Requisites of petition-filing. ''The petition shall set forth the condition of the estate and the facts and circum- stances on which the petition is founded, and shall be signed by the guardian and verified by his affidavit, and shall be filed at least ten days before the commencement of the term of court at which the application shall be made.^o 739. Notice — practice — sale. Section 30. "Notice of such application shall be given to all persons concerned, by publi- cation in some newspaper published in the county where the application is made, at least once in each week for three succes- sive weeks, or by setting up written or printed notices in three of the most public places in the county, at least three weeks before the session of the court at which such application shall be made. The ward shall be served with a copy of such notice at least ten days before the hearing of such application. "^^ Section 31. "Such application shall be docketed as other causes, and the petition may be amended, heard or continued for further notice, or for other cause. The practice in such cases shall be the same as in other cases in chancery. "^ 2 Sec- tion 32. "The court shall direct notice of the time and place of sale to be given, and may direct the sale to be made on rea- sonable credit, and require such security of the guardian or purchaser as the interest of the ward may require. "^3 Where it appears necessary, and for the best interest of the ward in 29 — Greenbaum v. Greenbaum, 32 — Section 31, chapter 64, 81 111. 367. "Guardian and Ward." 30 — Section 29, chapter 64, 33 — Section 32, chapter 64, "Guardian and Ward." Starr & "Guardian and Ward." As to sec- Curtis Annotated Statutes of Illi- tions of statute, in notes 31, 32, nois, Vol. 2, p. 2090; Kurd's R. S. 33, Starr & Curtis Annotated Stat- of III., 1905, p. 1132. utes of Illinois, Vol. 2, p. 2090, 31 — Section 30, chapter 64, and cases cited under section; "Guardian and Ward." Kurd's R. S. of 111., 1905, p. 1133. LEASING REAL ESTATE, ETC. 661 such proceeding to sell land by guardian, the court may order lands surveyed, subdivided and platted.-'^'* Where a decree re- cited ''notice of this application and due notice to ward has been given" held sufficient.^^ Where the statute requires notice of the application of a guardian to sell real estate to be pub- lished in a newspaper at least once in each week for three suc- cessive weeks, or to be posted in three public places at least three weeks before the session of the court at which the appli- cation is to be made, it is sufficient if the notice is published for three successive weeks in a newspaper, and the first publication is made three weeks before the session of the court.^** In the following case, after the lapse of twenty years from the date of a decree for the sale of a ward's land by his guardian, and the destruction of the court records, oral proof of the publica- tion of notice by the guardian of his intention to present the petition for leave to sell, in one of the papers of the county for the time required by law, taken in connection with a recital in what was proved to be a correct copy of the original decree, that it appeared to the court "that due proof of the time, place, and intention of presenting" such petition was made by publi- cation in one of the public papers of the county ''for six suc- cessive weeks," was held satisfactory proof that the requisite notice of the application to sell had been given.^^ A recital in a decree, "that the court found the petition and its statements to be true" on review by the Supreme Court" twenty-five years after its rendition, and where the petition for a guardian's sale was lost, and where the decree shows the presentation of the petition, notice of the application and personal notice to the ward, it was held in such case jurisdiction must be presumed, although it is not alleged and does not affirmatively appear of record, and such presumption is only overcome when the rec- 34 — Sections 11-13, chapter 109, 35 — Spellman v. Matthewson, "Plats," Starr & Curtis Anno- 65 111. 306. tated Statutes of Illinois, Vol. 3, p. 36 — Fry v. Bidwell, 74 111. 381. 2973; Kurd's R. S. of 111., 1905, 37— Spring v. Kane, 86 111. 580. p. 1529. 662 THE LAW OF ESTATES. ord itself shows want of jurisdiction-^^ It is held, the fact that a decree or order of court authorizing a guardian's sale may fail to fix a time and place of sale, may be erroneous, does not effect the jurisdiction and render the sale void.^^ 740. Return — sale approved — title. Section 33. **It shall be the duty of the guardian making such sale, as soon as may be, to make return of such sale to the court granting the order, which, if approved, shall be recorded, and shall vest in the purchaser or purchasers all the interest in the estate so sold."** Agreement of parties not to bid against each other at a guard- ian 's sale, vitiates the sale.*^ Approval by court is necessary in order to divest title of ward.*- An order approving sale was entered sixteen years after sale, nunc pro tunc; but it was established by the records, the sale in fact was approved at the time of report of sale.*^ But in a case where the minors proved seven or eight years after the sale that at the time of filing the petition for the order of sale they were not served, and when the sale was made they were not residents of this State. Held, the court had no jurisdiction, and that such question was prop- erly raised on the motion for the approval of the sale, and that the sale ought not to be approved.** Approval of report of sale should be by order of court and a part of the record.*^ Irregu- larities in proceedings of guardian's sale of real estate may appear by the record, but the sale will not be legally invali- dated.*® The exercise of discretion in approving or disapprov- ing sale is controlled by well established principles.*' 741. Proceeds of sale — account — ^reinvestment. Section 34, provides: "An account of all moneys and securities received 38 — Field v. People, 180 111. nois, with Jones & Addington's 376; Reid v. Morton, 119 111. Supplements thereto. Vol. 2, p. 118. 2091; Vol. 4, p. 668, and cases 39 — Benfield v. Albert, 132 111. cited under section Oi. statute; 665. Kurd's R. S. of 111., 1905, p. 1133. 40— Section 33, chapter 64, 41— Lloyd v. Malone, 23 111. 43. "Guardian and Ward." Starr & 42— Reid v. Morton, 119 111. 118. Curtis Annotated Statutes of Illi- LEASING REAL ESTATE, ETC, 663 by any guardian for the sale of real estate of his ward shall be returned, on oath of such guardian, to the county court of the county where letters of guardianship were obtained, and such money shall be accounted for, and subject to the order of the county court, in like manner as other moneys belonging to such minor. In case of sale for re-investment in this State, the money shall be re-invested under the direction of the court."" Where a party, after arriving at age, settles with his guardian, and receives moneys in the hands of the guardian belonging to him, derived from a sale of his real estate, it will be presumed that he received the same with a knowledge of the source from whence it came, and did the act deliberately. In such case he has no rights to adjudicate and is estopped.*' 742. Non-resident guardian — powers to collect. Section 44 of the Guardian and Ward Act provides: "When there is no guardian in the State of a non-resident minor, his guardian ap- pointed and qualified according to the law of the place where the minor resides, having first obtained the authority of the County Court of the county in this State where any of the per- sonal estate of such minor may be, so to do, may collect, by suit or otherwise, receive and remove to such place of residence of the minor, any personal estate of such minor.""" Under this section of the statute, it is not an essential prerequisite that a foreign guardian, who wishes to ascertain the amount of money in the hands of a home guardian first obtain an order of the 43— Reid v. Morton, 119 111. 118. Curtis Annotated Statutes of Illi- 44 — Spellman v. Dowse, 79 111. nois. Vol. 2, p. 2092; Kurd's R. S. 66.' of 111., 1905, p. 1133. 45— Field v. Peoples, 180 111. 49— Corwin v. Shoup, 76 111. 389. 246. 46 — Conover v. Musgrave, 68 111. 50 — Section 44, chapter 64, 58; In re Steele, 65 111. 322; Har- "Guardian and Ward." Starr & vey V. Sweet, 16 111. 127; FitzgiB- Curtis Annotated Statutes of lUi- bon V. Lake, 29 111. 165. nois, with Jones & Addington's 47 — Ayers v. Baumgarten, 15 Supplements thereto. Vol. 2, p. III. 444. 2094, Vol. 4, p. 669, and cases cited 48 — ^Section 34, Chapter 64, under section of statute; Hurd's "Guardian and Ward." Starr & R. S. of 111,, 1905, p. 1134, 664 THE LAW OF ESTATES. county court for such purpose. The foreign guardian has the right without such order to cause a citation to issue against the home guardian, requiring such to make a settlement of his guardianship, as such proceeding is not considered to be strictly an action to collect money, but merely a proceeding to require the guardian to account and determine the amount of money in his hands.^^ But in order to sue and collect money, the foreign guardian must follow the requirements of the statute, and first obtain an order of the County Court for that pur- pose.^^ 743. Transfer of estate to non-resident guardian. Section 45. When there is a guardian in this State of a non-resident minor, the court may authorize such guardian to pay over and transfer the whole or any part of the ward's property to the non-resident guardian of such ward, appointed and qualified according to the law of the place where the ward resides, upon such terms as shall be proper in the premises, requiring receipts to be passed; and when the whole estate in the hands of a resi- dent guardian shall be so transferred, may discharge him.^^ 744. Conditions follow grant of authority to non-resident guardian. Section 46. "But the court shall not grant the authority mentioned in sections 44 and 45, except upon petition of such foreign guardian, signed by him and verified by his affidavit, and unless he shall file with the court properly authen- ticated copies of his letters of guardianship and bond, with security in double the amount of the value of the property and estate sought, which shall have been executed and filed in the court which appointed such guardian.' And unless it shall appear to the court that a removal of such estate will not con- flict with the interest of the ward, or the terms of limitation attending the right by which the ward owns the same, or the 51— McCleary v. Menke, 109 111. 53— Section 45, chapter 64, 300-301. "Guardian and Ward." Starr & 52 — Campbell v. Millar, 84 111. Curtis Annotated Statutes of Illi- App. 215. nois. Vol. 2, p. 2094; Kurd's R. S. of 111., 1905, p. 1134. LEASING /jREAL ESTATE, ETC. 665 rights of creditors; i|:lie resident guardian shall have ten days' previous notice of such application.^* 745. Sale of real estate by non-resident guardian. Section 47 provides: "Where any person residing in any other State of the United States, or any Territory thereof, shall have been or may hereafter be appointed guardian, in the State or Terri- tory in which such person resides, of any infant or other person owning real estate within this State, not having any guardian in this State, it shall and may be lawful for every such guardian to file his or her petition in the Circuit Court of the county in which said real estate, or the major part thereof, may lie, for sale of said real estate, for the purpose of educating and sup- porting such infant or other persons under guardianship, or for the purpose of investing the proceeds of such real estate in such manner as the court which appointed such guardian may order and direct; and the said Circuit Court is hereby fully authorized and empowered to order a sale of such real estate, conformably to the prayer of said petition. Provided, that every such guardian applying for such sale, shall file with his or her petition an authenticated copy of his or her letters of guardianship. And, provided, further, that the said court shall make no order for a sale under said petition, until the said guardian shall have executed and filed, in the court which appointed said guardian, a bond, with sufficient security, ap- proved by said last mentioned court, for the due and faithful application of the proceeds of every such sale, in such manner as the said last mentioned court may direct, an authenticated copy of which said bond, and the approval thereof, shall be deemed and taken by the Circuit Court as sufficient evidence of the execution and filing of the same. '"^^ The proceeding by a 54 — Section 46, chapter 64, text see Ante, 742, 743 and cita- "Guardian and Ward." Starr & tions. Curtis Annotated Statutes of Illi- 55 — Section 47, chapter 64, nois, Vol. 2, p. 2094; Kurd's R. S. "Guardian and Ward." Starr & of 111., 1905, p. 1134. As to sec- Curtis Annotated Statutes of Illi- tions 44 and 45, referred to in nois. Vol. 2, p. 2095; Kurd's R. S. of 111., 1905, p. 1134. 666 THE LAW OF ESTATES. guardian to sell the real estate of his ward are statutory, and the requirements of the statute, the application for the sale of such real estate shall be made in the county where the ward resides, or, in case the ward does not reside in the State, in some county where the whole or a part of the real estate is situated, is jurisdictional, and any material deviation from these require- ments, as to the court in which the proceedings must be had, is fatal to the jurisdiction of the court. In the case in question, the wards at and before the petition was filed resided in the State of Ohio. The lands in question were in Cook county and the proceedings had in Will county; and no lands sought in said proceedings to be sold were in Will county as a matter of fact.^« 746. Notice — terms of sale. Section 48 of the same act, pro- vides: ''Every guardian applying for an order of sale under the foregoing section shall be required to give notice of his or her petition in the same manner as is now required by law in cases of application for sales of lands belonging to minors, by resident guardians; and in every order for the sale of real estate under this act, it shall be the duty of the court to pre- scribe the terms of said sale, and the notice which shall be given thereof, and the place where such sale shall be made. "^^ 747. Deeds — title — bond for costs. Section 49. ''All sales of real estate, under the provisions of this act, are hereby declared to be good and valid; and all deeds executed by such guardian to the purchaser or purchasers under such sales, shall convey to and vest in such purchaser or purchasers all the estate, right, title and interest, in law or equity, of said infant or others in and to the land so sold. Section 50." In all suits and petitions by non-resident guardians, they shall give a bond for costs, as in cases of other non-residents.^* Where the sale 56 — Spellman v. Dowse, 79 111. nois. Vol. 2, p. 2095; Kurd's R. S. 69. of 111., 1905, p. 1135. 57 — Section 48, chapter 64, 58 — Section 49, chapter 64, "Guardian and Ward." Starr & "Guardian and Ward." Starr & Curtis Annotated Statutes of lUi- Curtis Annotated Statutes of Illi- LEASING REAL ESTATE, ETC. 667 of real estate by a foreign guardian of an insane person is made through an agent, the guardian not being present or directing it, and the guardian adopts the act of her agent, and the court approves the sale, there being no exceptions on this account, and the sale is fairly made and for a good price, it will be binding on the purchaser, and it is doubted whether the sale ccfuld be impeached in a direct proceeding. Where the court ordering sale of real estate has jurisdiction of the subject matter and of the parties, even if the proceedings are irregular and erroneous, the purchaser cannot avoid the sale, as the doctrine of caveat emptor applies in all judicial sales.^^ nois, Vol. 2, p. 2095; Kurd's R. S. 59— Wing v. Dodge, 80 111. 564. of 111., 1905, p. 1135. CHAPTER XLIII GUARDIANS' SETTLEMENT AND ACCOUNl ING ON FINAL SETTLEMENT Sec. 748. Settlements yearly and final settlements. 749. Powers of courts of probate not strictly confined to stat- ute. Common law powers still exist in such, court and apply to guardians. 750. Under common law account- ing was required of all guardians. 751. Final settlement. 752. The powers of courts of chan- cery will be applied in spe- cial cases when necessary. 753. Foreign guardian has right to take steps to collect money due his ward. 754. Final settlement, citation, limitation, liability of sure- ties. 755. Examination of guardians' se- curity, additional security. Sec. 756. Counter security. 757. Removal of guardian, sum- mons to show cause, notice, resignation. 758. Tendering written resignation will not operate to release. 759. Effect of guardian's procuring a second appointment by court in another county. County court cannot remove guardian without citing him to appear. Successor, delivery of prop- erty to such. Effect of marriage of female ward. Final settlement ; unclaimed moneys in hands of guard- ians; deposit of such money. Compensation. Appeals. 760. 761. 762. 763. 764 765 Sec. 748. Settlements — final settlements — accounting on final settlement. Section 14 of the Guardian and Ward Act pro- vides: "The guardian shall, at the expiration of a year from his appointment, settle his accounts as guardian with the County Court, and at least once every three years thereafter, and as much oftener as the court may require." Section 15. "At the expira- tion of his trust he shall pay and deliver to those entitled thereto all the money, estate and title papers in his hands as guar- dian, or with which he is chargeable as such." Section 16. "On 668 GUARDIANS' SETTLEMENT. 669 any accounting and final settlement of guardian, he shall exhibit and file his account as such guardian setting forth specifically, in separate items, on what account expenditures were made by him, and sums received and paid out since his last accounting, and all moneys on hand, and an itemized account of all notes, bonds, accounts, and evidences of indebtedness composing the personal estate of his ward; and such guardian shall produce and exhibit to the court the notes, bonds, accounts, and evidence of indebtedness so itemized, and held by him; and it is hereby made the duty of the court to inspect the assets so exhibited. Which account shall be accompanied by proper vouchers and signed by him and verified by his affidavit. ' '^ 749. Powers of courts of probate not strictly confined to statute — common law powers still exist in such court and apply- to guardians. The common law powers of guardians still exist in this State, where such powers are not inconsistent with statu- tory enactments.^ In the leading and elaborate case. Bond v. Lockwood, Mr. Justice Beckwith very learnedly discusses the jurisdiction and powers of courts of probate, and the scope of the statute, with conunon law powers of such court and guard- ians. It is substantially stated in that opinion: The provisions of the statute relating to guardians were not designed as a complete code, but were enacted to confer upon the County Court power to appoint guardians, and to regulate their con- iduct in accordance with their duties at common law. Some im- perfections in the common law were remedied, and a more simple and convenient mode of procedure introduced. While some of its provisions were declaratory of the common law, many of the powers and duties, rights and liabilities of guard- 1 — As amended by act approved pp. 2080, 2081, 2082, and cases June 27, 1885. In force July 1, cited; Vol. 4, p. 668, and cases 1885. Laws, 1885, Section (14), cited; Kurd's R. S. of 111., 1905, p. chapter 64, "Guardian and Ward." 1131. Starr & Curtis Annotated Statutes 2 — Bond v. Lockwood, 33 111. of Illinois, with Jones & Adding- 212; Schmidt v. Shaver, 196 III. ton's Supplements thereto. Vol. 2, 115. 670 THE liAW OF ESTATES. ians are not by the statute, specifically defined. The statute contains such provisions as were necessary to define the nature of the jurisdiction conferred, prescribe the manner of its exer- cise, and correct some defects of the law as it then existed. In other respects, the common law regulating the powers and duties, rights and liabilities of guardians, was left in force. The power of the County Court to compel guardians to render an account of their guardianship is co-extensive with that of a Court of Chancery. In this respect the statute has made no change, but has conferred upon Courts of Probate a summary power, when necessary to exercise, compelling guardians to render accounts upon oath, touching their guardianship; but this power of the court goes still further, for it may require proofs, examine witnesses, and resort to all manner of means necessary to ascertain the truth. It is made the duty of the court under the later statutes, to inspect the assets exhibited with the account, or claimed to be on hand; and of course implied power of inspection gives the court power to ascertain the truth of the value of such.* Its power in that regard are GO-extensive with that of a court of chancery.^ 750. Under common law accounting was required of all guardians. Guardians by custom of the various cities recog- nized by the common law, guardians by election, in chivalry, and those appointed by ecclesiastical courts, chancery and other courts, and testamentary guardians were all by the common law required to render an account and might be compelled to do so. As heretofore stated the powers of courts of probate to compel guardians to render an account of their guardianship from time to time are co-extensive with a court of chancery. The accounts are to be rendered upon oath and the court may require their settlement.^ The matter of accounting is not an 3 — 33 111. 212. 6 — See sections 14 to 16, chapter 4 — In re Steele, 65 111, 324. 64, "Guardian and Ward." For 5 — Bostwick V. Skinner, 80 111. statute citations see Ante, 748; 147; People v. Seelye, 146 111. 189; Bond v. Lockwood, 33 111. 220. People V. Medart, 166 111. 351. GUARDIANS' SETTLEMENT. 671 action either at law or equity, within the meaning of the statute of limitations.'^ It is a summary proceeding provided by statute.® So under the common law and the statute of this State, the court may allow or disallow in whole or in part an account of a guardian, and may, for that purpose examine wit- nesses, may require the production of vouchers, and do all other acts necessary to enable it to arrive at a correct conclusion as to whether or not the account ought to be allowed; and when allowed it is required to be entered of record. The allowance of a guardian's account is a judicial act, and though it is often and necessarily during the minority of the ward, ex parte, it is presumed by law the act was properly performed until the contrary appears. It is prima facie evidence of the correctness of the account allowed.^ All honest errors in accounting may be explained, as such should not be held conclusive upon the guardian.^" But where one not regularly appointed guardian, who arrogates to himself the functions of such, is called to account, he will be held to the strictest possible accounting under the rules of equity.^^ In such case he will when found converting ward's estate to his own advantage, be charged with compound interest.^- Equity will not permit advantage to be taken of the ward on final settlement, even where the account and settlement is approved by the court.^^ If a guardian makes a fictitious account and report to the court, falsely charging himself with money not in fact due from him to his ward, for 7 — People V. Stewart, 29 111. lews Appeal, 36 Conn. 186; Story's App. 441; Gilbert v. Guptill, 34 Eq. Jur. Sec. 91; Bispham's Prin- lU. 112; Doolittle v. Bruce, 81 111. ciples of Equity, p. 189, section 103. 183. 8 — In re Steele, 65 111. 322; Mc- 11 — Davis v. Harkness, 1 Gilm. Cleary v. Menke, 109 111. 294; Gil- (111.) 173. lette V. Wiley, 126 111. 310; Ghee- 12— Rowan v. Kirkpatrick, 14 ney v. Roodhouse, 32 111. App. 49; 111. 1. Harvey v. Harvey, 87 111. 54. 13 — Lehman v. Rothbarth, 111 9— Bond V. Lockwood, 33 111. 111. 200; Carter v. Tice, 120 111. 220. 277; Gillette v. Wiley, 126 111. 126; 10— Zw re Steele, 65 111. 326; Bruce v. Doolittle, 81 111. 103; Dixon V. Buell, 21 111. 203; Bran- Bennett v. Hanifin, 87 111. 31. don v. Brown, 106 111. 525; Sel- 672 THE LAW OF ESTATES. the fraudulent purpose of making his surety liable, a court of equity will interfere at the suit of the surety to correct such reports, and make them conform to the truth as to the amount of money in fact owing by the principal.^* 751. Final settlement. All questions, in the absence of fraud, relating to a claim of a guardian against his ward, on final settlement in a court of probate, are necessarily involved in the inquiry, or settlement within the jurisdiction of the court ; and when such adjudication and settlement of account is final it is binding upon the ward and all parties interested, except such matters as are not necessarily involved in the determination. A judgment is conclusive upon the parties to it only in respect to the grounds covered by it, and the law and the facts necessary to uphold it.^^ The Illinois cases fol- low the doctrine of the English cases on this subject.^® And where the accounting is not made in accordance with the statu- tory provisions, it is not an adjudication binding upon the ward.^* From the confidential relation between a guardian and his ward, it will be presumed that the ward acts under the influence of the guardian, and all transactions and dealings between them, prejudicially affecting the interests of the ward, will be held to be constructively fraudulent. And this presump- tion continues even after the guardianship has ended, when the matters between the guardian and ward have not yet been fully settled; and transactions between them during the presumed influence, which are injurious to the interests of the ward, will be set aside, unless shown to have been the deliberate act of the ward, after full knowledge of his rights. In all such cases, the burden rests upon the guardian to prove the circumstances 14_Fogarty v. Ream, 100 111. 111. 338; Miller v. McMannus, 57 375, and cases cited, extending 111. 128; Williams v. Walker, 62 the rule by analogy to conserva- 111. 518; Jessup v. Jessup, 102 111. tors. See also Slags v. People, 21 480; Smith v. Wilmington Coal 111. App. 283. Co., 83 111. 498. 15— Bigelow on Estoppel, p. 22. 17— Hazelrigg v. Parsley, 69 III 16— Gray v. Gillilian, 15 111. App. 470; Schmidt v. Shaver, 196 453; McCloskey v. McCormick, 44 111. 108. GUARDIANS' SETTLEMENT. 673 of knowledge and free consent on the part of the ward, good faith and absence of influence alone can overcome this presump- tion.^^ And this doctrine was extended to the following case, where the final report was approved by the County Court, a receipt for the balance due the ward was filed, and the guardian discharged, but no money was paid the ward. This being done in the absence of the ward, and without notice to her, and when no one represented her interests. A bill was filed in equity, and the whole proceeding set aside, the sureties having been parties to the procuring of the receipt, were with the principal held liable to the ward, as they were not protected by the settlement and discharge of the guardian.^** And again, where settlement and reports were approved by the Probate Court, in a case where a husband of a guardian makes out reports in his wife's name, and assumes exclusive agency of the trust funds and securities of the wards, under a settlement pressed after they became of age. In proceedings in chancery, the husband was held to account as a trustee and was not per- mitted to take advantage of the final settlement approved by the court.-** 752. Foreign guardian has right to take steps to collect money due his ward. A foreign curator or guardian of an infant may cause a citation to issue against a guardian ap- pointed in this State, and require him to make a settlement of his guardianship, and thereby ascertain the money in his hands belonging to the ward, without first obtaining an order of court allowing such foreign curator to sue for or collect the same, that proceeding not being strictly an action to collect the money. It is sufficient if he obtains such order before he seeks to collect the money." ^ And in equity, under the general pow- ers of such court over the estates of infants and others under disability, may procure an order for the sale of an infant's 18— Gillette v. Wiley, 126 111. 111. 200; Harvey v. Harvey, 87 III. 310. 54 ; Cunningham v. 111. Cent. R. R. 19— Carter v. Tice, 120 111. 277. Co., 77 111. 178. 20— Lehman v. Rothbarth, 111 21— McCleary v. Menke, 109 HI. 43 294. 674 THE LAW OF ESTATES. unproductive property in which such has a reversionary inter- est in fee, in the land sought to be sold, though the latter be situate in another State and where the bill seeking such relief shows that such a course is for the best interests of the infant. ^^ In such case the land may be sold or mortgaged, where it appears proper for the support of the infant.^^ 753. The powers of courts of chancery will be applied in spe- cial cases when necessary. Where a testator by his will, in- vokes the equitable jurisdiction of the court in relation to a trust fund, and such fund is reduced to possession by the trus- tee, under the direction of the court, this will also confer, inci- dentally, jurisdiction to construe the will creating the trust.^* Where a testator devises funds to a trustee, in trust, to be loaned, and the income to be applied to a child's support dur- ing its life, and at its death the same be paid over to the other children of the testator, if there is a clear intention, to be gathered from the whole will, that such child is to have a main- tenance, the court may order the trustee to make use of the principal when the income is insufficient, notwithstanding the limitation over. The trustee on his own authority, cannot break in upon the capital of the trust fund for maintenance — and this rule is for the benefit of the infant. That the court, in a proper case, possesses such power, is clearly shown by the authorities.^^ The husband of a guardian who takes the estate of the ward in his o\vn management and control may be treated as a guardian de son tort in a court of equity.^^ And where exigencies arise, not contemplated by party creating a trust, or a necessity absolutely arises to grant reliefj it will be found a 22— Allman v. Taylor, 101 111. 352; Longworth v. Riggs, 123 111. 185. 263. 23 — Allman v. Taylor, 101 111. 25 — Perry on Trusts, sees. 616, 185-186. 618, and cases cited in notes by 24 — Bailey v. Briggs, 56 N. Y. the author; Longworth v. Riggs, 407; Strubher v. Belsey, 79 111. 123 111. 263. 307; Whitman v. Fisher, 74 111. 26 — Lehman v. Rothbarth, 111 147; Pomeroy's Eq. Sees. 351, 111. 186. GUARDIANS' SETTLEMENT. 675 court of chancery is vested with power to relieve.^' And such power was used, where the court considered it proper, to meet the exigencies or the absolute necessity of the case considered as indicated by authorities cited. 754. Final settlement — citation — limitation — liability of sure- ties. As long as the guardian 's bond is in force, the statute will not bar an accounting. If the party desires to set up the bar of the Statute of Limitations as a defense, he must plead the same.-^ Equity follows the law as to period of limitation; a bill filed to set aside guardian's bond must be filed within the period for action on bond.-*^ A proceeding by citation to re- quire a guardian to account, is not considered an action at law or in equity, within the meaning of the Statute of Limitations.-'^ It is a summary proceeding to determine the amount of money in the hands of the guardian due the ward, and requires an accounting.^ ^ A failure to make final settlement and payment, is a breach of the guardian's bond, upon which a cause of action at once arises against the sureties under the statute."^ In the absence of fraud, the sureties are bound by guardian's settlement and final accounting.^^ There should be no tempta- tion or even suspicion of temptation for the guardian to abuse the trust.2* 755. Examination of guardian's security — additional securi- ty. Section 35 of the guardian and ward act, provides: "It shall be the duty of the County Court, at each accounting of 27— Rhoads v. Rhoads. 43 111. lette v. Wiley, 126 111. 310; Chee- 230; Voris v. Sloan, 68 111. 588; ney v. Roodhouse, 32 111. App. 49. Longworth v. Riggs, 123 111. 264. 32— People v. Brooks, 22 111. 28 — Bruce V. Doolittle, 81 111. App. 594; and cases cited; Gillett 104. V. Guptill, 34 111. 112. 29— Gillette v. Wiley, 126 111. 33— Ream v. Lynch, 7 111. App. 310; People v. Stewart, 29 111. 162; Gillett v. Wiley, 126 111. 310. App. 441. 34 — 1 Cooley's Blackstone, 2d 30— Gilbert v. Guptill, 34 111. ed., 461; Barnsback v. Dewey, 13 112; Bruce V. Doolittle, 81 111. 104. 111. App. 584; Cheeney v. Rood- 31— In re Steele, 65 111. 322; house, 32 111. App. 49; Lehman v. Cleary v. Menke, 109 111. 294; Gil- Rotbbarth, 111 111. 185. 676 THE LAW OF ESTATES. the guardian, to inquire into the sufficiency of his sureties. And if, at any time, it has cause to believe that the sureties of a guardian are insufiicient or in failing circumstances, it shall, after summoning the guardian, if he be not before the court, require him to give additional security, "^° 756, Counter security. Section 36 of the same act, provides : "Upon the application of the surety of any guardian, and after siunmoning the guardian, the court may, if it believes him to be insolvent or in doubtful circumstances, require him to give counter security to his sureties."^® 757. Removal of guardian — summons to show cause — ^notice — resignation. Section 37, "The county court may remove a guardian for his failure to give bond or security, or additional or counter security, when required, or for failure to make inventory, or to account and make settlement, or support or educate the ward, or when he shall have become insane, or have removed out of the State, or become incapable or unsuitable for the discharge of his duties, or for failure to discharge any duty required of him by law or the order of court, or for other good cause. "^^ Section 38. "Before removing a guardian the court shall summon him to show cause why he should not be removed for the cause alleged. If the guardian has left the State, or cannot be served with process, he may be notified in the same manner as non-resident defendants in chancery, "^^ Section 39. "When it appears proper, the court may permit the guar- dian to resign his trust, if he first settles his accounts and de- livers over the estate as by the court directed, ' '^^ Guardians, at 35 — Section 35, chapter 64, 37 — Section 37, chapter 64, "Guardian and Ward." Starr & "Guardian and Ward." Curtis Annotated Statutes of lUi- 38— Section 38, chapter 64, nois, Vol. 2, p. 2092; Kurd's R. S. "Guardian and Ward." of 111., 1905, p. 1133. 39— Section 39, chapter 64, 36 — Section 36, chapter 64, "Guardian and Ward." Statute "Guardian and Ward." Starr & citations notes 37, 38, 39. Starr & Curtis Annotated Statutes of Illi- Curtis Annotated Statutes of Illi- nois, Vol. 2. p. 2092; Kurd's R. S. nois Vol. 2 pp. 2092. 2093, and of 111., 1905, p. 1133. cases cited; Kurd's R. S. of 111., 1905. p. 1133. GUARDIANS' SETTLEMENT. 677 common law, were treated as trustees, and as such were held re- sponsible for the faithful discharge of the duties imposed upon them. The aid of the courts of chancery has always been in- voked to compel the execution of trusts and the protection of infants. In this respect the statute has made no change, but has given to the County Court power and jurisdiction somewhat summary in its nature over guardians.^" It is held this action being in its nature equitable and the parties not being entitled to a jury, it was not necessary that propositions to be held as law in the decision of the case should be submitted to the Cir- cuit Court in order to present the question whether or not its action was warranted by the law of the case.*^ It is also said, in Wackerle v. People,*- "he now insists that the tender of his resignation as such guardian, and the appointment which he obtained from the Morgan County Court, ousted the jurisdic- tion of the County Court of Scott county. No resignation was allowable at common law except for strong reasons show- ing that the best interests of the ward demanded it."*^ Prior to the passage of the statute on the subject, a guardian could not in this State, as a matter of right, resign his trust.** 758. Tendering written resignation will not operate to re- lease guardian. Under section 39 of the guardian and ward act,^^ the resignation of the office of guardian is not an abso- lute right, but subject to a determination of its propriety by the court. Nor can it be said that the mere tender of a written resignation to the court is the proper manner to bring the mat- ter before the court. The guardian ought to present his peti- tion to the court for permission to resign his trust, containing some showing by which the court can see that it would be proper, accompanied by a report of the state of his account 40— Jn re Steele, 65 111. 322; 43— Schouler on Domestic Re- Wackerle v. People, 168 111. 253. lations, 3rd ed., sec. 315; Wack- 41— Wackerle v. People, 168 111. erle v. People, 168 111. 253. 253. 44— Young v. Lorain, 11 111. 624. 42—168 111. 254. 45— As to statute at large, see Ante, 757. 678 THE LAW OF ESTATES. as guardian, and offering to settle the same and deliver over the estate as the court may direct. It is held, the County Court properly treated appellant's attempted resignation as mere waste paper, and did not lose jurisdiction over the appellant thereby.*^ 759. Effect of guardian procuring a second appointment by court in another county. A guardian regularly appointed in one county by a court having jurisdiction of the subject mat- ter and the persons of the guardian and his wards, cannot di- vest that court of jurisdiction by tendering his written resigna- tion and procuring his reappointment by the County Court of another county.*" 760. County court cannot remove guardian without citing him to appear. Appointment of guardian may be vacated ab initio, where the rights of third persons are not affected by such resignation.*^ But revocation of letters by the court on such resignation is valid as a cause for removal, and cannot be collaterally reviewed.*^ A County Court, however, has no power to remove a guardian without first summoning him to appear and show cause why he should not be removed for the reasons alleged in the petition required by the statute; and this is so even though the guardian has failed to comply with an order of the court requiring him to give a new and sufficient bond.=^'> 761. Successor — delivery of property to such. Section 40 of the Guardian and Ward Act, provides: "Upon the re- moval, resignation or death of a guardian, another may be ap- 46— Wackerle v. People, 168 111. ute at large, see Ante, 757; Mun- page 254. roe v. People, 102 111. 406; Hani- 47— Pease v. Roberts, 16 111. fin v. Needles, 108 111. 411; Wack- App. 634; Wackerle v. People, 168 erley v. People, 168 111. p. 255. 111. 255. The two former cases cited in the 48 — Pease v. Roberts, 16 111. Wackerle case, extend the doc- App. 634. trine of the text to Executors and 49— Young V. Lorain, 11 111. 624. Administrators, and by analogy to 50— Section 38, chapter 64, that of guardians. See Ante, 757. "Guardian and Ward." For stat- GUARDIANS' SETTLEMENT. 679 pointed, who shall giv bond and security and perform the duties prescribed in this act. And the court shall have power to compel the guardian so removed or resigned, or the executor or administrator of a deceased guardian, or the conservator of an insane person, or other person, to deliver up to such suc- cessor all the goods, chattels, moneys, title papers, and other effects in his custody or control, belonging to such minor, and upon failure to so deliver the same, to commit the person of- fending to jail, until he shall comply with the order of the court.^^ An order of a Probate Court, directing a guardian to pay over to his successor a certain sum of money in his hands, belonging to the ward, is conclusive upon the guardian and on his sureties, unless the order can be impeached for fraud or collusion.''- And the successor suing on the former guar- dian's bond must allege in the pleadings his own appointment.^^ 762. Effect of marriage of female ward. Section 41. "The marriage of a female ward shall discharge her guardian from all right to her custody and education, but not to her property."'* 763. Final settlement — unclaimed moneys in hands of guard- ians — deposit of such money. "That when any guardian shall have made final settlement with the County Court it shall be the duty of the court to order such guardian to deposit with the county treasurer such moneys as he may have belonging to any ward whose whereabouts may be unknown, or belonging to the unknown heir or heirs of any deceased ward, or the heirs of any ward whose whereabouts may be unknown, and to take the re- ceipt of such treasurer therefor, and to file such receipt in the office of the clerk of the County Court where such settlement has been made. ' '^^ 51 — Section 40, chapter 64, 53 — People v. Steele, 7 111. App. "Guardian and Ward." Starr & 20. Curtis Annotated Statutes of Illi- 54 — Section 41, chapter 64, nois. Vol. 2, p. 2093, and cases "Guardian and Ward." Starr & cited; Kurd's R. S. of 111., 1905, Curtis Annotated Statutes of Illi- p. 1133. nois, Vol. 2, p. 2093; Kurd's R. S. 52— Ammons v. People, 11 ITl. 7; of 111., 1905, p. 1134. Ralston v. Wood, 15 111. 159; 55 — Paragraph 51, sec. 1, chap- Ream V. Lynch, 7 111. App. 161. ter 64, "Guardian and Ward." 680 THE LAW OF ESTATES. "When money shall be deposited as aforesaid, the person or persons entitled to the same may at any time apply to the court making such order, and obtain the same upon making satisfac- tory proof to the court of his, her or their right thereto. ' '^^ 764. Compensation. "Guardians, on settlement, shall be allowed such fees and compensation for their services as shall seem reasonable and just to the court."" In re Steele, the court say: "There was no error in the refusal to allow the claims of the guardians against the estate of the deceased. They were all barred by the statute of limitations and by laches. Letters of administration were granted to one of them in 1856. They were appointed guardians in 1855, during a prior administra- tion. The citation was not issued until 1868. This long time, without any attempt at a settlement of the estate, or the pre- sentation of claims in any of the modes provided by statute, must be regarded as a bar to all debts, and we must presume an adjustment of all rights, except those of the infants. The alleged error in refusing compensation for the care and atten- tion to, and the board and clothing of, the infants, does not exist. There was a contrariety of evidence as to the services of the children, and their expenses, and we ought not to disturb the finding of the court. "^* 765. Appeals. Section 43. "Appeals shall be allowed to the Circuit Court from any order or judgment made or rendered under this act, upon the appellant giving such bond and se- curity as shall be directed by the court ; but no appeal from an order removing a guardian shall, in anywise, ajBfect such or- der, until the same be reversed.^^ On appeal which lies from 56— Paragraph 52, sec. 2, chap- 57— Section 42, chapter 64, ter 64, "Guardian and Ward." An "Guardian and Ward." Starr & act approved May 10, 1889. In Curtis Annotated Statutes of Illi- force July 1, 1889. Laws 1889, p. nois, Vol. 2, p. 2096; Kurd's R. S. 166. Starr & Curtis Annotated of 111. 1905, p. 1134. Statutes of Illinois, Vol. 2, p. 58— 7n re Steele, 65 111. 327. 2096; Kurd's R. S. of 111., 1905, p. 59— Section 43, chapter 64, 1135. "Guardian and Ward." Starr & GUARDIANS' SETTLEMENT. 681 order approving final account and settlement of guardian, the court must give direction for bond and security ; and such bond must be filed and appeal taken during the proper term of the court. '^•^ And an appeal from an order requiring guardian to pay to his ward who has reached majority a sum of money found due by the court on final settlement, is tried de novo in the Circuit Court.®^ The trial in the Circuit Court is generally de novo; the remedy is by appeal and not by writ of error.*^ Curtis Annotated Statutes of Illi- 60 — McFarland v. McFarland, 4 nois, with Jones & Addington's 111. App. 157. Supplements thereto, Vol. 2, p. 61 — Hazelrigg v. Pursley, 69 111. 2093; Vol. 4, p. 669, and cases App. 469. cited under section of statute in 62 — Kingsbury v. Sperry, 119 question in each volume; Kurd's 111. 283; Ennis v. Ennis, 103 111. R. S. of 111., 1905, p. 1134. 95; Condon v. Churchman, 32 111. App. 317. CHAPTER XLIV IDIOTS, LUNATICS, DRUNKARDS AND SPENDTHRIFTS Sec. 766. Grcneral and introductory re- marks. 767. Proceedings to determine questions of sanity. 768. Summons, service, hearing, jury continuance, appoint- ment of conservator. 769. Bond of conservator, addi- tional bond, counter securi- ty. 770. Summons and notice must be served. 771. When a court of equity will adjudicate as to insanity. 772. The bond must comply with the statute. Sec. 773. Care of estate, custody of per- son, children. 774. Inventory, form of same. 775. Settlements, final manner of accounting, power to adjust claims. 776. Performance of contracts, le- gal proceedings, appearance by conservator. 777. Contracts, when and as to whom void. 778. One knowingly dealing with insane person is deemed guilty of fraud. 779. What contracts voidable. 780. Swindling an idiot or lunatic. 781. Management of estate. Sec. 766. General remarks. Conservators in the strict sense of the word are guardians of the person and property of the idiot, insane or distracted person, the drunkard and spend- thrift. Such persons under disability are governed practically by statute law of the State of Illinois, similar to that relating to guardian and ward; and in many respects the duties of the conservator and the guardian of minors are similar; for the statutory enactments applicable to both are almost identical. Of necessity, when such statute law is construed, it applies in principle to both the conservator of the insane and the guar- dian of minors. When a conservator is properly appointed by a court of competent jurisdiction and under such appoint- ment qualifies, he is vested with power to care for the estate of the idiot, insane or distracted person, drunkard and spend- 682 idiot's, lunatics, drunkards, etc. 683 thrift; and if required by the court has in some respect cus- tody of the person of such. In Illinois, a conservator has merely the care and management of his insane ward's estate, without title thereto; and any action therefor affecting the title to such real estate must be brought against the ward; the judg- ment must be against him, and not against the conservator.' The statute, relating to such provides: "The conservator shall manage the estate of his ward frugally and without waste, and apply the income and profits thereof, so far as the same may be necessary, to the comfort and suitable support of his ward and his family, and the education of his children."^ Section 5 of the same act provides: "Such conservator shall have the care and management of the real and personal estate of his ward, and the custody of his person, unless otherwise ordered by the court; and the custody and education of his children where no other guardian is appointed, unless the court orders otherwise."^ For the detention of the lunatic no appeal lies, but the law allows him a remedy by the writ of habeas corpus.* Under the early statutes of this State, provision only was made for the care and custody of the estates of insane per- sons; and while the early statute provided for the commitment and detention of the insane pauper, the commitment of insane not classed as paupers was not provided for.^ Paupers whether idiots, or otherwise, became public charges of the overseer of the toAvnship or the county authorities. Such could be detained and committed, where there were no relations specified by statute, that might be made to contribute in whole or in part to the support of such.® 1— Scott V. Bassett, 194 111. 602. 3— Section 5, chapter 86, "Luna- 2 — Section 17, chapter 86, tics, etc." For statute at large see "Lunatics, etc." Starr & Curtis Post, 773, and citations as to Starr Annotated Statutes of Illinois, & Curtis, and Hurd. with Jones & Addington's Supple- 4 — People v. Gilbert, 115 111. 60. ments thereto. Vol. 2, p. 2667; 5 — ^Revised Statutes, 1845, chap- Vol. 4, p. 817, and cases cited un- ter 50. City of Alton v. County of der section of statute in eacll Madison, 21 III. 115-116. volume; Kurd's R. S. of 111., 6 — See Session Laws, 1837, p. 1905, p. 1347. See also post, 781. 21: Statutes of 1845, chapter 50; 684 THE LAW OF ESTATES. 767. Proceedings to determine question of sanity, etc. Sec- tion 1. "Lunatics, idiots^ drunkards and spendthrifts," pro- vides: "When any person having any estate, real or personal, shall be, or be supposed to be, an idiot or an insane, distracted or feeble minded person, who, by reason of unsoundness of mind, is incapable of managing or caring for his own estate, or when any person having any estate shall be, or be supposed to be a drunkard or spendthrift who is alleged so to spend, waste or lessen his estate as to expose himself or his family to want or suffering, or any county, town or incorporated city, or village to any charge or expense for the support of himself or his family, the County Court of the county wherein such person resides, shall, on the proper application of any reputable citizen of such county, proceed in the manner hereinafter pro- vided, to ascertain whether such person be an idiot or an insane, distracted or feeble minded person, who, by reason of unsound- ness of mind, is incapable of managing and caring for his own estate, a drunkard or spendthrift as aforesaid. Provided, that in any county wherein a Probate Court is or hereafter may be established, such application shall be made to said Probate Court "^ 768. Summons, service, hearing, jury, continuance — appoint- ment of conservator. Section 2 of the same chapter, as amended in 1903 is as follows: "On any application for the appoint- ment of a conservator of any person being filed, the court shall set aside cause for hearing, summons shall be issued returnable Laws of 1853, p. 262; an act to Curtis Annotated Statutes of Illi- amend chapter 50 of the Revised nois, Vol. 2, p. 2657; Kurd's R. S. Statutes, entitled "Idiots and of 111., 1905, same section and Lunatics" and extending the pro- chapter, p. 1342. visions thereof to habitual drunk- 7 — Section 1, chapter 86, as ards. Passed and in force, April amended by law of 1903, page 19, 1869; Smith v. Bartholomew, 247; passed May 16, 1903. In force 65 111. 375. See also section 24, July 1, 1903. Starr & Curtis An- chapter 85, entitled "Lunatics" notated Statutes of Illinois, with granting such the benefit of the Jones & Addington's Supplements writ of habeas corpus. Starr & thereto, Vol. 5, p. 374; Kurd's R. S. of 111., 1905, p. 1345, IDIOTS, LUNATICS, DRUNKARDS, ETC. 685 on any day of the term, and service shall be had upon the per- son for whom a conservator is sought to be appointed, in the same manner by summons or otherwise as service is had in chancery. At the time fixed for the hearing a jury of six persons shall be empaneled to try the case; the court may, for good cause, continue the case from time to time. If any per- son be found an idiot, insane person, distracted or feeble minded person, drunkard or spendthrift, and by reason of such condition incapable of managing or caring for his own estate, it shall be the duty of the court to appoint a conservator for such person."^ 769, Bond of conservator — additional bond — counter se- curity. Section 3 of the same act as amended by law of 1903 is as follows: ''The conservator so appointed shall before en- tering upon the duties of his office give bond payable to the People of the State of Illinois, with at least two sufficient sure- ties to be approved by the couyt at least in double the amount of the ward's personal estate and six times the amount of the gross annual income of the ward's real estate, provided, how- ever, if such real estate is improved or is covered in whole or in part with timber or is improved in part and in part cov- ered with timber, the penal sum in said bond shall be increased by an amount at least double the value of said improvements or of said timber or of bothj as the case may be, with such condi- tions as near as may be as provided, in the case of bonds of the guardians of infants. Additional bonds and counter security may be required as hereinafter provided.^ 770. Summons and notice must be served. In a proceeding under the statute to procure the appointment of a conservator to a lunatic, the record should show affirmatively, that notice was served and reasonable notice given, or the inquisition will 8 — Section 2, chapter 86, "Luna- tics, etc.," as amended by law tics, etc." Same statute citations of May 16, 1903. Starr & Curtis as note 7, Ante, 161. Annotated Statute of Illinois, etc., 9 — Section 3, chapter 86, "Luna- Vol. 5, p. 375; Kurd's Statute, 1905, p. 1346. See note (7). 686 THE LAW OF ESTATES. be set aside. If the party be actually lunatic, the notice can do no harm; but if he be sane it is of the most momentous im- portance to him, and at any rate it must be his legal right.^* The statute of 1845 relating to the "appointment of a con- servator of an insane or distracted person having an estate, real or personal," and the statute of 1853, relating to the "sale of real estate of lunatics or distracted persons," applied to insane married women, as well as others, and this notwithstanding, at the time these statutes were passed, the common law govern- ing the rights of married women obtained in this State.^^ The validity of the appointment of a conservator for a lunatic like that of an administrator, cannot be attacked or questioned in a collateral proceeding, such as a suit to set aside the sale of land by the conservator under a decree of court.^^ Manage- ment of property will not be taken from one supposed to be insane without notice and a hearing." 771. When a court of equity will adjudicate as to insanity. In the case of Pyott v. Pyott,^^ it is said: "It is urged with great earnestness that the Circuit Court, which rendered the decree, was without jurisdiction as to the insanity of P. The position of counsel seems to be, the issue of insanity having been raised by the pleadings the Circuit Court should have suspended further proceedings, and directed an inquisition, in conformity to the common law, or under the provisions of chapter 85 or 86 of the Revised Statutes of the State of Illinois, should be had and taken and the sanity of P. determined and the result certified to the Circuit Court, and that, at all events, it was essential the issue of insanity should have been submitted to and determined by a jury. Held: the chancery court could determine such issue without a jury. After an inquisition and 10— Eddy V. People, 15 111. 386. Duffin v. Abbott, 48 111. 18; 11— Gardner v. Maroney, 95 111. Schmidt v. Pierce, 17 111. App. 552. 523. 12— Dodge V. Cole, 97 111. 338; 13— Isle v. Cranby, 101 111. App. Wright V. Walburn, 39 111. 563; 222. 14—191 111. 289. IDIOTS, LUNATICS, DRUNKARDS. ETC. 687 appointment of a conservator for an insane person under the statutory provisions on the subject, all suits and proceedings in behalf of the lunatic should be brought by the conservator, unless the interests of the conservator are adverse to those of the ward, or for other sufficient reasons the court shall deem it better to appoint some other person as next friend to appear for, counsel, prosecute or defend for such insane person. ^° Before such inquisition, the rule which now obtains in both England and the United States is, that a lunatic may sue in his own name by some proper person appointed or recognized by the court as the next friend or guardian ad litem for the insane person.^'' When the mental capacity of a party to a proceeding arises for determination as an issue in a case in chancery (other than under bill to contest a will), the better practice is to cause the question of sanity to be sub- mitted to a jury for an advisory verdict; but the court is not without jurisdiction to hear and determine the question with- out a jury, and even upon verdict rendered by a jury the court may decline to accept the finding of the jury and decide for itself the issue, upon the evidence presented in the case.^^ The court may substitute next friend and make the appointment when necessary so to do.^^ 772. The bond must comply with the statute. The bond re- quired by the statute runs in the name of the People for the use of the ward, and not for the purpose of securing outside parties.^® So where the bond of a conservator was given by a surety company, and such bond failed to comply with the pro- yisions of the 3rd section of chapter 86 aforesaid,-" which re- 15—16 Am. & Eng. Ency. of 18— lago v. lago, 168 111. 343; Law, 2d ed., p. 601, and cases Isle v. Cranby, 199 111. 47; cited in notes; see also post 776. Howard v. Howard, 1 L. R. A. 16—16 Am. & Eng. Ency. of (Ky.) 610; Pyott v. Pyott, 191 111. Law, 2d ed., p. 600. 289. 17— Brown v. Miner, 128 111. 19— Witham v. People, 89 111. 148. See also. Dodge v. Cole, 97 App. 105. 111. 338; Neutzel v. Neutzel, 13 111. 20— For statute at large and ci- App. 542; Roughan v. Morris, 87 tation see ante, 767. 111. App. 645. 688 THE LAW OP ESTATES. quires two sureties, where only one was given, it was held if the statute is valid, the bond was not only properly disap- proved, having but one surety where two are required, but as the case involved the construction of the statute, the Appellate Court decided it could not pass upon the same.-^ Section 4 of the act provides, ' ' that suit may be brought on such bond in the name of the People, for the use of any person entitled to recover on the breach thereof, and damages adjudged on pro- ceedings had thereon as in other cases of penal bonds.-^ 773. Care of estate — custody of person — children. Section 5 of chapter 86, provides: "Such conservator shall have the care and management of the real and personal estate of his ward, and the custody of his person unless otherwise ordered by the court, and the custody and education of his children where no other guardian is appointed, unless the court orders otherwise; but this act shall not be so construed as to deprive the mother of the custody and education of the children without her consent, if she be a fit and competent person to have such custody and education."-^ 774. Inventory — form of same. Section 6 of the same chap- ter, provides: "The conservator shall, immediately upon his appointment, take charge of the estate of his ward, and within sixty days after such appointment, or if the court is not in ses- sion at the expiration of that time, at the next term thereafter, return to the court a true and perfect inventory of the real and personal estate of the ward, signed by him and verified by his affidavit, etc. Section 7 provides: The inventory shall de- scribe the real estate, its probable value and rental, and state whether the same is incumbered, and if incumbered, how and for how much ; what amount of money is on hand, and contain a list of all personal property, including annuities and credits 21— People V. Church, 103 111. notated Statutes of Illinois, Vol. App. 133. 2, p. 2664; Kurd's R. S. of 111., 22— Section 4, chapter 86, "Lu- 1905, p. 1346. natics, etc." Starr & Curtis An- 23 — Section 5, chapter 86, "Lu- natics, etc." IDIOTS, LUNATICS, DRUNKARDS, ETC. 689 of the ward, designating them as 'good,' 'doubtful' or 'des- perate, ' as the ease may be. ' '^* 775. Settlements — final — manner of accounting — power to adjust claims. Section 8 provides: "The conservator shall, at the expiration of a year from his appointment, settle his ac- counts as conservator with the County Court, and at least once each one year thereafter, and as much oftener as the court may require. ' ' Section 9 provides : ' ' Such conservator at the expira- tion of his trust, shall pay and deliver to those entitled thereto, all the money, estate and title papers in his hands as conserva- tor, or with which he is chargeable as such, in such manner as shall be directed by the order or decree of any court hav- ing jurisdiction thereof." Section 10: "On every accounting or final settlement of a conservator, he shall exhibit and file his account as such conservator, setting forth specifically, in separate items, on what account expenditures were made by him, and all sums received and paid out since his last account- ing, and on what account each was received and paid out, and showing the true balance of money on hand — which account shall be accompanied by the proper vouchers, and signed by him and verified by his affidavit." Section 11: "The con- servator shall settle all accounts of his ward, and demand and sue for and receive in his own name, as conservator, all per- sonal property of and demands due the ward, or with the ap- probation of the court, compound for the same, and give a discharge to the debtor upon receiving a fair and just dividend of his estate and effects. "^^ This was the law of 1869, incor- porated in act of 1874. Laws of 1869, p. 363, sec. 5 ; E. S. 1845, p. 277, sec. 4. Where a conservator for a period of thirteen years failed to keep accounts and rendered no reports, it was 24 — Sections 6 and 7, chapter 86, Curtis Annotated Statutes of Illi- "Lunatics, etc." Starr & Curtis nois. Vol. 2, p. 2665, and cases Annotated Statutes of Illinois, Vol. cited; Kurd's R. S. of 111.. 1905, 2, pp. 2664, 2665; Kurd's R. S. of p. 1347. These sections give the 111., 1905, p. 1346. law of 1869, incorporated in the 25— Sections 8, 9, 10, 11, chap- act of 1874. Laws of 1869, p. 363, ter 86, "Lunatics, etc." Starr & sec. 5; R. S. 1845, p. 277, sec. 4. 44 690 THE LAW OF ESTATES. held he was not entitled to compensation; and was estopped from claiming allowance for services during such time.^'^ The yearly reports of a conservator, are only prima facie evidence upon the final accounting, and this is so, notwithstanding the yearly accounts have been duly approved. Upon the final ac- counting, such yearly accounts may be re-opened, and the costs occasioned by contesting the yearly reports, in certain cases may be taxed to the conservator.^' A claim not included in conservator's inventory or account is not barred in subsequent suit by ward.^^ 776. Performance of contracts — legal proceedings, appear- ance by conservator. Section 12 of the act, provides: "The conservator, by permission and subject to the direction of the court which appointed him, may perform the personal con- tracts of his ward, mad6 in good faith and legally subsisting at the time of the commencement of his disability, and which may be performed with advantage to the estate of the ward.'* Section 13: "He shall appear for and represent his ward in all suits and proceedings, unless another person is appointed for that purpose, as conservator or next friend; but nothing con- tained in this act shall impair or affect the power of any court to appoint a conservator or next friend to defend the interest of said ward impleaded in such court, or interested in a suit or matter therein pending, nor its power to appoint or allow any person, as next friend of such ward, to commence, prosecute or defend any suit in his behalf, subject to the direction of such court. "^* Although a lunatic or insane person is not 2Q—In re Conservatorship of 29— Sections 12, 13, chapter 86, Hall, 19 111. App. 295. "Lunatics, etc." Starr & Curtis 27 — Wilcox V. Parker, 23 111. Annotated Statutes of Illinois, App. 429. See also, accounting with Jones & Addington's Supple- and settlement by executor, ad- ments thereto, Vol. 2, pp. 2665, ministrator and guardian, under 2666, and cases cited; Vol. 4, p. chapters in this work relating 816, and cases cited; Vol. 5, p. thereto; and authorities where 375, and cases cited; Kurd's R. S. duties are similar. of 111., 1905, p. 1317. In lieu of 28— Raymond v. Vaughn, 17 111. law of 1869, p. 366, sec. 6; R. S. App. 144. 1845, p. 277, sec. 5. IDIOTS, LUNATICS, DRUNKARDS, ETC. 691 punishable criminally, he is liable in a civil action for any tort he may commit.^" In an action by the personal representative of a person wrongfully killed, against the estate of the party killing, to recover compensation for the death, evidence of the insanity of the latter party at the time of his wrongful act causing the death, is inadmissible when offered in defense of the action. A lunatic having no will of his own, and his acts lacking the element of intention, the only proper measure of damages in an action against him for a wrong, is the mere compensation of the party injured. Punishment is not the ob- ject of the law when persons unsound in mind are the wrong- doers.^^ There is no statute authorizing the allowance of claims against the estate of an insane person in the hands of his con- servator, and the allowance of the same in the County Court will be a nullity. The proper remedy of a creditor of one who is adjudged to be insane, is by suit against the conservator as his representative, under which the creditor may have any prop- erty of the insane person sold under execution.^^ And so until the appointment and qualification of a conservator for an in- sane person, it is clear that suit may be brought in such per- son's name for the recovery of a debt due him.^^ In a case where there was no conservator appointed under the statute, it was held, that suit for lunatic might be instituted in name of his next friend on his behalf.^* In suits in chancery by an insane person suing by next friend where no conservator has been appointed, the court treats the proceeding as proper.^*^ If the court has taken jurisdiction of a case by permitting a 30— Cooley on Torts, sees. 99, 33 — Chicago R. I. and Pacific Ry. 103; Sherman and Redfield on Co. v. Hunger, 78 111. 300; Speck Negligence, section 57; Mclntyre v. Pullman Palace Car Co., 121 111. V. Sholty, 24 111. App. 605; Same 33. V. Same, 121 111. 600. 34— Ryder v. Topping, 15 111. 31— Mclntyre v, Sholty, 121 111. App. 216. 600. 35 — Van Buskirk v. Van Bus- 32— Morgan v. Hoydt, 69 111. kirk, 148 111. 9; Ronan v. Bluhm, App. 489; Fruitt v. Anderson, 12 173 111. 277; Pyott v. Pyott, 191 111. App. 430. 111. 280; 16 Am. & Eng. Ency. of Law, 2d ed., p. 601. 692 THE LAW OF ESTATES. bill to be filed in the name of an alleged insane person by a party appointed by the court as next friend, the fact that the alleged insane person appears by attorney and moves to dis- miss the case does not oust the court of jurisdiction; but the court may investigate the mental condition of such person, either by hearing evidence and passing upon the question or by submitting the question to a jury.^® The presumption is, that adult persons of sound mind are capable of managing their own affairs, and caring for their own estates; and the mere fact that it is alleged in an affidavit filed in support of a mo- tion by a person asking that he be appointed the next friend to a particular person who, it is alleged, is of unsound mind and not capable of taking care of his own affairs, does not destroy that presumption.^' 777. Contracts, when and as to whom void. Section 14 of chapter 86, provides: "Every note, bill, bond or other con- tract by an idiot, lunatic, distracted person or spendthrift, made after the finding of the jury, as provided in section 1 of this act, shall be void as against the idiot, lunatic, distracted person, drunkard or spendthrift, and his estate ; but the person making any contract with such idiot, lunatic, distracted person or spendthrift shall be bound thereby. "^^ Although a person may have been adjudged insane, yet, if no conservator has been appointed, and he is in the management of his business, and there is nothing about his appearance to indicate his incapacity to contract, if he purchases an article at a fair and reasonable 36_isle V. Cranby, 199 111. 39. ton v. Hall, 55 Minn. 22; Beall v. 37_Isie V. Cranby, 199 111. 39. Smith, L. R. 9 Ch. 85; Jones v. In the latter case it is held: If Lloyd, L. R. 18 Eq. 265; Denny v. a person of unsound mind has not Denny, 8 Allen, 311; Story's Eq. been so adjudged or has no con- Pleading, sec. 66; Malin v. Malin, servator, a suit to protect the Johns. Ch. 240. rights of such person may be 38 — Section 14, chapter 86, brought in his name by some re- "Lunatics, etc." Starr & Curtis sponsible party appointed by the Annotated Statutes of Illinois, court to represent him as next Vol. 2, p. 2666, and cases cited un- friend. See the following lead- der section of statute; Hurd's R. ing cases on the subject: Plymp- S. of 111., 1905, p. 1317. IDIOTS, LUNATICS, DRUNKARDS, ETC. 693 price, necessary and useful in his business, the seller having no notice of his being adjudged insane, he will be liable to pay the price he agreed to pay, and it will be error to enjoin a judg- ment on a note given for the price.^^ The same authority hold- ing, notwithstanding the statute, a contract made with a lunatic in a lucid interval, is binding, and may be enforced against him.*" The fact that a person has been adjudged lunatic or insane, and is under the ban of the law when he gave a note, is a legal defense to an action thereon, and should be made at law when suit is brought on note and not attempted in equity.*^ And where a conveyance of land is set aside in equity on the ground of the insanity or lunacy of the grantor, and an account taken, the grantee, having purchased in good faith, without any knowledge of the alleged insanity, will be enti- tled to be reimbursed that which he has paid on the same.*^ And where an insane person received the benefit of all the pur- chase money received from a sale made by his conservator, and it appeared that at the time of receiving it, he had sufficient capacity to transact business intelligently, and that he compre- hended what had been done; it was held, that he was estopped from afterwards denying the validity of such sale.*^ To im- peach a contract for mental incapacity the mental weakness must have been such that the party was incapable of under- standing what he was doing, or comprehending the terms, scope and effect of his contract.** Where, as in Illinois, a con- servator has merely the care and management of his insane ward's real estate, without title thereto, an action affecting the title to such real estate should be brought against the ward, 39— McCormick v. Littler, 85 111. 85 111. 296-299; Menkins v. Light- 62. ner, 18 111. 282. 40— Chitty on Contracts, 8 Am. 43— Searle v. Galbraith, 73 111. ed. 132; 4 Parsons on Contracts, 271. 4tli ed. 314; Lilly v. Waggoner, 27 44— Sands v. Potter, 165 111. 111. 395. 397; Miller v. Craig, 36 111. 109; 41— McCormick v. Littler, 85 Willemin v. Dunn, 93 111. 511; 111. 62. Kimball v. Cuddy, 117 111. 213. 42 — Scanlon v. Cobb, Guardian, 694 THE LAW OF ESTATES. and the judgment must be against him, and not against the conservator.^^ Mere mental weakness does not justify a court of equity setting aside an executed contract, provided such weakness does not amount to an inability on the part of the afflicted person to comprehend the contract.*'' 778. One knowingly dealing with insane person is deemed guilty of fraud. Where the question is simply as to which of the two titles is the better legal title, the party should bring his action in a court of law, but courts of equity will assume jurisdiction to set aside conveyances fraudulently obtained.*^ While a court of equity will not take jurisdiction of every case of fraud which may be presented, yet there are few questions over which its jurisdiction is more universal, and especially so when it relates to the transfer of real estate.*^ Although it may be true that the fraud^ if proved, might defeat that title in a court of law, yet the courts of equity have ever claimed to possess superior facilities for investigating such questions, to the courts of law, and certainly the relief which they can give is, in many cases, more satisfactory. When the fraud is once established, they can cut up the fraudulent conveyance or con- tract by the very roots, and leave the party in as secure a po- sition as if it had never existed."*^ "Whether a deed executed by an insane person is void, or voidable only, such may be set aside by the insane person after his restoration to sanity, or it may be set aside by a vendee, to whom such insane person conveys the premises, after his restoration to sanity.^" Upon 45 — Scott V. Bassett, 194 111. 102 111. 596; Breckenridge's Heirs 602. V. Ormsby, 1 J. J, Marshall, 236; 46— SafEer v. Mast, 223 111. 108. Kilbee v. Myrick, 12 Fla. 431; 47— Clay v. Hammond, 199 111. Langdon v. People, 133 111. 382. 375. In this case the rule "One 48 — Kennedy v. Northup, 15 111. knowingly dealing with an in- 148. sane person with knowledge of 49 — Clay v. Hammond, 199 111. such insanity is deemed guilty of 375. premeditated fraud," is applied 50 — Hanna v. Read, 102 111. firmly in the case. Supported by 596; Breckenridge Heirs v. Orms- the following: Hanna v. Read, by, 1 J. J. Marshall, 236. IDIOTS, LUNATICS, DRUNKARDS, ETC. 695 a review of cases it was held: **Aiid these authorities also show, that a purchaser or devisee, holding his right from the infant or non compos, derived after the attainment of legal discretion, or restoration to sanity, may avoid a deed made for the same estate during disability. "... Every person is deemed guilty of meditated fraud when he deals with an insane person with knowledge of such insanity.^^ And the court in a proper proceeding will appoint a receiver to protect the estate of an insane person on a bill filed by next friend.®^ 779. What contracts voidable. Section 15 provides : Every contract made with an idiot, lunatic or distracted person be- fore such finding, or with a drunkard or spendthrift made after the application for the appointment of a conservator, may be avoided, except in favor of the person fraudulently making the same.^^ A deed by one for whom a conservator is subsequently appointed should not be set aside without requiring restoration of the money paid by the grantee and the return of the prop- erty or its equivalent, which he conveyed to a third party at the instance of the grantor in part consideration for his deed, where the grantee had no knowledge or notice of the grantor's infirmity or of any undue influence by the party to whom the grantee made his conveyance.^* A confession of judgment by insane person will be set aside.^^ And a ratification of voidable deed after restoration of reason, must be evidenced by intelli- gent act.^* 780. Swindling an idiot or lunatic. Section 16 of the same act, provides: "Whoever, by trading with, bartering, gaming, 51 — Kilbee v. Myrick, 12 Fla. with Jones & Addington's Supple- 431; Breckenridge's Heirs v. ments thereto. Vol. 2, p. 2667, Vol. Ormsby, 1 J. J. Marshall, 236; 4, p. 816, and cases cited; Kurd's Clay V. Hammond, 199 111. 376. R. S. of 111., 1905, p. 1347. 52— Roughan v. Morris, 87 111. 54— Eldridge v. Palmer, 185 111, App. 645. 618. 53 — Section 15, chapter 8G, 55 — Crawford v. Thomson, 161 "Lunatics, etc." Starr & Curtis 111. 165. Annotated Statutes of Illinois, 56 — Beasley v. Beasley, 180 IlL 168. 696 THE LAW OF ESTATES. or any other device, possesses himself of any property or val- uable thing belonging to any idiot, lunatic or notoriously dis- tracted person, drunkard or spendthrift, shall be deemed guilty of swindling, and upon conviction thereof be fined in a sum not exceeding $2,000, or confined in the county jail not exceed- ing one year, or both."^^ 781. Management of estate. Section 17 of the same act, provides : ' ' The conservator shall manage the estate of his ward frugally and without waste, and apply the income and profits thereof, so far as the same may be necessary, to the comfort and suitable support of his ward and his family, and the education of his children. "^^ "Where the statute of a State authorizes the Probate Court to appoint a married woman guardian of an insane person, etc., without the concurrence of her husband, and the court appoints the wife of an insane person as his guardian, her acts will be legal and binding until removed, whether the statute contemplated such an appointment or not. Whether the wife might be so appointed, in nowise affects the power of the court, even though its action was erroneous. ^^ A suit in assumpsit commenced in the County Court of Kankakee county to recover for the support of an insane person of means, who was returned by the State authorities to the county, and was kept by it for a period of years in the insane asylum with the knowledge of his conservator, it was held: His estate was liable to the county for his necessary support, care and medical atten- tion furnished by the county during such period.®" This decision is based upon the statute above which requires the conservator to apply the income and profits of his ward's estate, so far as may be necessary, to the comfort and suitable support of his ward. And where a conservator made an allowance to his 57 — Section 16, chapter 86, 58 — Section 17, chapter 86, "Lunatics, etc." Starr & Curtis "Lunatics, etc." Same statute ci- Annotated Statutes of Illinois, tation as note 57. Vol. 2, p. 2667; Hurd's R. S. of 59— Wing v. Dodge, 80 111. 564. 111., 1905, p. 1347. 60— Dandurand v. County of Kankakee, 196 111. 539. IDIOTS, LUNATICS, DRUNKARDS, ETC. 697 "ward's daughter, though of age, was weak in mind and body; the court held such an allowance was right and proper.*^^ 61 — In re Conservatorship of Supplements thereto, Vol. 2, p. Hall, 19 111. App. 295. See Starr 2667; Vol. 4, p. 817; Vol. 5, p. 375, & Curtis Annotated Statutes of U- and cases cited under section 17, linols, with Jones & Addington's chapter 86, "Lunatics, etc." Hurd's R. S. of 111., 1905, p. 1347. CHAPTER XLV COMMITMENT AND DETENTION OF LUNATICS Sec. 782. General and introductory re- marks. 783. "Insane" defined. 784. Not restraint of liberty. 785. Proceedings for supposed in- sanity statement. 786. County judge to issue writ, hearing. 787. Inquest in lunacy shall be by jury or a commission of two physicians. 788. Jury of six, qualified physi- cian to be one of jury. 789. Inquest may be held in open court, in chambers, or at the home of the person alleged to be insane, excluding spec- tators. 790. The provisions of the statute reviewed and upheld. 791. Interrogatories in writing, court may set aside findings. Record of finding. 792. Estate of insane person, in- quest in lunacy, appoint- ment of conservator, filing record in probate court. 793. Jurisdiction of person not charged with crime, county judge to keep separate docket. 794. Insane person kept at expense of State. 795. Judge to inquire into pecu- niary condition of person charged with lunacy. Sec. 796. 797. 798. 799. 800, 801. 802. 803. 804. 805. 806. 807. 808. 809. 810. Clerk's statement to superin- tendent of hospital. Warrant of commitment in duplicate, indorsement, wo- man protected. Private not received, except when. Communication with friends permitted, when. Restraint allowed only, when. Authority to discharge pa- tients vested in trustees. Not discharged without suit- able clothing and money. Entitled to habeas corpus. Discharged, receipt of super- intendent. Escape; death of patient, pro- ceedings. Conspiracy to commit person to hospital or asylum, pen- alty. Costs of proceedings. Act does not apply to persons in custody on criminal charge. Convicts in peni- tentiary admitted, when. Non-resident admitted, when. Administration and enforce- ment of laws entrusted to State Commissioners of Pub- lic Charities. State Commissioners of Pub- lic Charities. Powers. 698 COMMITMENT OF LUNATICS. 699 Sec. 811. Copies of law to be printed by- Commissioner of State Con- tracts. Early stages of in- sanity, treatment. Sec. 812. Acquittal of crime on plea of insanity, proceedings. 813. Repeal. 814. Superintendent to furnish. clerk with list, penalty. Sec. 782. General and introductory remarks. The several acts of the legislature of Illinois, prior to the revision of the laws in 1874, relating to the care of the person and property, of lunatics, idiots or distracted persons, and the commitment and detention of such, were incomplete and unsatisfactory in their operation, leaving as such legislation did much undone, pertaining to the care of the person of these unfortunates. We refer particularly to the acts of 1845, 1847, 1853, 1865 and 1867. The revision and enactments of 1874, afforded some meas- ure of relief in this particular, but it was not until the revi- sion of this law in 1893, enacted to meet the absolute require- ments of the State and many counties, who were unable be- cause of lack of proper legislation to take care of the insane and distracted persons increasing in numbers throughout the State, that the legislature took notice, that in this respect Illinois was much behind its sister states in its care of such persons. State pride, one of the cherished principles of the union of States, has always been and always will be an incentive necessary in forc- ing this class of legislation. State and county authorities rec- ognize the fact, that the unfortunate insane, must of necessity be cared for at the charitable institutions of the State erected for this purpose and supported by a tax upon the people of the State. The lunatic, idiot, drunkard and spendthrift, are the outgrowth of society, as that term is applied commonly to the people at large. These unfortunates, always the object of leg- islative enactments, controlling the person and property of such, have certain recognized rights that the more fortunate must respect. It is well to recognize, that the spirit of Amer- ican citizenship, when supported by the public newspapers of the day, will not for an instant, tolerate any abuse of the in- mates of such institutions. These unfortunates are wards of 700 THE LAW OF ESTATES. the State, and it, as their guardian through proper and honest officials, is expected to perform the duties relating to such guardianship faithfully and well. This chapter deals princi- pally with the commitment and detention of lunatics, adjudged such, by proper inquisition; we therefore at length give the statute law of Illinois revised in 1893, and amendments thereof, with such authorities in adjudicated cases, arising under this statute, since, and before its enactment. 783. Insane defined. Section 1, chapter 85 of the statute of Illinois, entitled "Lunatics," under the revision of the act in 1893, provides: That the word insane in this act shall be con- strued to mean any person who, by reason of unsoundness of mind, is incapable of managing and caring for his own estate, or is dangerous to himself or others, if permitted to go at large, or is in such condition of mind or body as to be a fit subject for care and treatment in a hospital or asylum for the insane: Provided, that no person, idiot from birth, or whose mental de- velopment was arrested by disease or physical injury occurring prior to the age of puberty, and no person who is afflicted with simple epilepsy shall be regarded as insane, unless the mani- festations of abnormal excitability, violence or homicidal or suicidal impulses are such as to render his confinement in a hospital or asylum for the insane a proper precaution to pre- vent him from injuring himself or others."^ 784. Not restraint of liberty. Section 2. " Except as herein provided, from and after the passage of this act no insane per- son, or person supposed to be insane, but who shall not have been legally adjudged to be insane, shall, by reason of his in- sanity or supposed insanity, be restrained of his liberty: Pro- vided, that this section shall not be construed to forbid the tem- porary detention of an alleged lunatic, for a reasonable time, not exceeding ten days, pending a judicial investigation of his mental condition. "^ 1— Section 1, chapter 85, "Luna- Kurd's R. S. of 111., 1905, p. 1338. tics." Starr & Curtis Annotated 2 — Section 2, chapter 85, "Luna- Statutes of Illinois, Vol. 2, p. 2652; tics." Starr & Curtis, etc.. Vol. 2, COMMITMENT OF LUNATICS. 701 785. Proceedings for supposed insanity — statement. Section 3. "When any person shall be, or be supposed to be, insane, any reputable citizen of the county in which such patient re- sides or is found may file with the clerk of the County Court of said county, a statementj in writing, under oath, setting forth that the person named is insane and unsafe to be at large, or suffering under mental derangement, and that the welfare of himself or others requires his restraint or commitment to some hospital or asylum for the insane ; the said statement must be accompanied by the names of the witnesses (one of whom at least must be a physician having personal knowledge of the case), by whom the truth of the allegations therein contained may be substantiated and proved : Provided, that when it shall appear by such statement the person alleged to be insane has not been examined by a physician, the judge may appoint a qualified physician of the county to make such examination and allow him compensation therefor, not exceeding five dollars, which shall be taxed and collected as herein provided in respect to other costs in proceedings in inquest of lunacy."^ 786. County judge to issue writ — Shearing. Section 4. **Upon the filing of the statement aforesaid, unless the person, alleged to be insane shall be brought before the court without a writ, or unless an affidavit of some credible person shall be filed setting forth that, in the opinion of the affiant, the phys- ical or mental condition of the said person is such (stating the same), as to render it manifestly improper that such person be brought before the court, the judge of the county shall direct the clerk to issue a writ, directed to the sheriff' or to any con- stable or to the person having custody or charge of the person alleged to be insane, commanding such person to be brought before the court at such time and place as the judge may ap- point for the hearing and determining of the matter; and in p. 2653; Kurd's Statutes, 1905, p. tics." Starr & Curtis Annotated 1338. Statutes of Illinois, Vol. 2, p. 3— Section 3, chapter 85, "Luna- 2653; Kurd's R. S. of 111., 1905, p. 1338. 702 THE LAW OF ESTATES. no case shall such hearing take place until the person alleged to be insane shall have been notified as the court shall direct,"* 787. Inquests in lunacy shall be by jury or a commission of two physicians. Section 5 as amended May 14, 1903, is as fol- lows: "Inquests in lunacy shall be by jury or a commission of two licensed physicians engaged in active practice in said county, as hereinafter provided." Section 6 revised law of 1893, provides: "When no jury is demanded and the circum- stances of the case are such that there appears to the judge to be no occasion for the impaneling of a jury, or that a trial by jury would for any reason be inexpedient or improper, the judge shall appoint a commission of two qualified physicians in regular and active practice who are residents of the county, to be chosen by himself, on account of their known competency and integrity, who shall make a personal examination of the patient and file with the clerk of the court a report in writing verified by affidavit, of the result of their inquiries together with their conclusions and recommendations. The commission- ers herein provided for shall have power to administer oaths and take sworn testimony."^ 788. Jury of six — qualified physicians. Section 7 of the revision of 1893, provides: "In all cases of inquest by jury, the jury shall consist of six persons, and one of the jurors at least must be a qualified physician, and the proceedings shall conform in all respects, as nearly as may bcj to the ordinary practice of the County Court. The rights of the person whose mental condition is inquired into shall be the same as those of any defendant in a. civil suit, ' "^ 789. Inquests may be held in open courts at home of person alleged to be insane excluding spectators. Section 8 as amended 4 — Section 4, chapter 85, "Luna- 1903. Starr & Curtis Annotated tics." Starr & Curtis Statutes, Statutes of Illinois, Vol. 2, p. etc., Vol. 2, p. 2653; Kurd's Stat- 2653; Kurd's R. S. of 111., 1905, p. utes, 1905, p. 1339. 1339. 5 — Section 5 and 6, chapter 85, 6 — Section 7, chapter 85, "Luna- "Lunatics." As amended May 14, tics," COMMITMENT OF LUNATICS. 703 in 1903, provides: "Inquests in lunacy may be in open court or in chambers, or at the home of the person alleged to be in- sane, at the discretion of the court. The judge shall preside whether the inquest is by jury or a commission, and the pres- ence of the patient shall be indispensable, and no proceedings can be had in his absence, unless otherwise provided for in this act. The judge may require all persons other than the patient, his friends, witnesses, licensed attorneys and officers of the court to withdraw from the room during the inquest. ' '^ 790. The provisions of the statute reviewed and upheld. In the case of Haynes v. Clearlock,^ it is said: "If this statute made no provision for a notice and hearing, then the question of its validity would be fairly involved. Regarding notice, the statute provides, that in no case shall a hearing take place until the person alleged to be insane shall be notified as the court shall direct. The character of the notice is left to the sound discretion of the court ; but the only question which could arise would be w^hether the notice given in a particular case was a reasonable or sufficient one, and this does not affect the validity of the statute. The same case reviewing the sections quoted which provide for inquest to be held in open court, in chambers or at the home of the alleged insane person, and for the in- quest by jury, and where same is not demanded by commission of two qualified physicians, holds: "A court is a place where justice is administered judicially, and the person authorized to administer justice in a judicial capacity must be present. The statute contemplates a hearing, which necessitates the pres- ence of the judge, and the presence of the patient is indispen- sable. The court may, if not satisfied with the finding of the jury or commission, set the same aside and dismiss the pro- ceedings or order another inquest. If the judge approves the finding he may enter a proper order, and the judgment entered 7 — Section 8, chapter 85, "Luna- utes of Illinois, Vol. 2, p. 2654; tics." As to citations, note 6 and Kurd's R. S. of 111., 1905, p. 1339. 7. Starr & Curtis Annotated Stat- 8—184 111. 98. 704 THE LAW OF ESTATES. is the judgment of the court. '"^ Under the common law of England, the Lord Chancellor by special grant from the crown, exercised power over the persons and estates of lunatics and idiots. In theory of law, the State, in its character of parens patriae, rightfully exercises the same power and control over the persons and property of lunatics and idiots, that was ex- ercised by the crown of England through the Lord Chancellor at an early period, or as it was exercised prior to the fourth year of the reign of James the First.^** 791. Interrogatories in writing — court may set aside find- ings — record of finding. Section 9, provides: "The jury or commission, as the case may be, shall furnish to the court in writing answers to such interrogatories as may be contained in a form to be prescribed by the State Commissioners of Public Charities, and shall certify that the same are correct to the best of their knowledge and belief, which interrogatories shall be submitted to the medical member or members of the jury or commission by the court." Section 10. "The court may, if not satisfied with the finding of the jury or commission, set the same aside and dismiss the proceedings or order another inquest." Section 11. "Upon the return of the finding of the jury or commission, the court shall cause the same to be re- corded at large, and shall enter the proper order, in accordance with the finding of the jury or commission, for the disposition of the person alleged to be insane ; such order may discharge the patient with or without conditions; or remand him to the custody of his friends, or commit him to some hospital or asy- lum for the insane, public or private, within the limits of the State, or to a county insane asylum or insane department of a county almshouse, or a department for the insane in the county almshouse in the county where such alleged insane per- son resides. But whatever order may be made in the case shall stand and continue to be binding upon all persons whom it may concern until rescinded, reversed or otherwise legally 9— Haynes v. Clearlock, 184 111. 10— Dodge v. Cole, 97 111. 354. 98-99. COMMITMENT OF LUNATICS. 705 superseded or set aside. Appeals shall be allowed to the Cir- cuit Court from any order or judgment made or rendered under this act upon the appellant giving such bond and se- curity within such time as the court may direct."" In Neely V. Shephard,^^ it is held: Section 7 of the act on lunatics, pro- viding that "in all cases of inquest by jury, the jury shall con- sist of six persons" one of whom must be a physician, applies only to the County Court, and on appeal to the Circuit Court from the County Court's judgment finding the respondent to be a distracted person, the customary jury consisting of twelve men should try the case. Persons well acquainted with the respondent in a lunacy inquest, and whose opinions appear to be founded upon the facts as to his condition, may properly be allowed to give such opinions, the weight to be ^iven them being a question for the jury in the Circuit Court.^^ It is also held: Notwithstanding, the provisions of section 11, a writ of error may issue from the Appellate Court where the order entered and sought to be reviewed is void.^* 792. Estate of insane person — inquest in lunacy — appoint- ment of conservator — filing record in probate court. Section 12, as amended May 14, 1903, is as follows: "If any person al- leged to be insane shall be possessed of any estate, real, per- sonal or mixed, it shall be lawful for the person filing applica- tion for an inquest in lunacy in his case to make at the same time application for the appointment of a conservator of such alleged lunatic. And if such alleged lunatic shall be adjudged insane, or it shall appear to the court that any person has been adjudged insane by the court without application for a con- servator having been made, and that such lunatic is possessed of any estate, real, personal or mixed, and is still insane, in either case it shall be lawful for the court, upon petition filed 11— Sections 9, 10, chapter 85, 12—190 111. 637. "Lunatics." Starr & Curtis Anno- 13 — Neely v. Shephard, 190 III. tated Statutes of Illinois, Vol. 2, 637. p. 2654; Kurd's R. S. of 111., 1905, 14— Haines v. Clearlock, 95 IlL p. 1340. App. 207. 45 706 THE LAW OF ESTATES. for the purpose, to make an appointment of a conservator upon the same judgment without further proceedings, and exercise in respect thereto all the powers contained in an act entitled, "an act to revise the law in relation to lunatics, idiots, drunk- ards and spendthrifts," approved March 26, 1874, in force July 1, 1874, and all amendments thereto ; and such conservator shall perform the duties and incur the liabilities imposed by said act upon conservators appointed thereunder: Provided, that in any county wherein a Probate Court has been or may hereafter be established, upon the filing in such court of the proper petition, together with the duly certified copy of the record and the verdict of the jury, or the report of the com- mission of physicians, and the judgment of the County Court thereon finding such person insane, such Probate Court may, in its discretion, without further inquest, by jury or commission of physicians, appoint such conservator; and every note, bill, bond or other contract by any person adjudged insane under the provisions of this act, made after such person has been adjudged insane under this act, shall be void as against such lunatic and his estate, but a person making any contract with such lunatic shall be bound thereby. "^° A contract entered into by one personally before he is adjudged insane or consid- ered such, is binding upon his estate, for in that case insanity does not relieve the estate.^^ 793. Jurisdiction of persons not charged with crime — county judge to keep separate docket. Section 13 of the Lunatic act, provides: "Jurisdiction over the persons of insane persons not charged with crime is vested in the county courts." Sec- tion 14. "Each county judge shall keep a separate docket of proceedings in inquisitions of lunacy, upon which shall be made such entries as will, together with the papers filed, preserve 15 — Section 12, chapter 85, thereto. Vol. 2, p. 2655; Vol. 4, p. "Lunatics." As amended by act of 814; Vol. 5, p. 372; Kurd's R. S. May 14, 1903. Starr & Curtis An- of 111., 1905, p. 1340. notated Statute of Illinois, with 16 — Sands v. Potter, 165 111. Jones & Addington's Supplements 404; Isle v. Cranby, 199 111. 47, 48. COMMITMENT OF LUNATICS. 707 a perfect record of each case. The original statements and application for inquest, writ and return made thereto, and re- ports of commission and verdicts of juries, shall be filed with the clerk of the court, and a copy of the finding, whether the person alleged to be insane be found to be insane or sane, and, if found to be insane, a copy of the medical certificate shall also be in each case furnished to the State Commissioners of Public Charities."" 794. Insane person kept at expense of state. Section 15. "All insane persons admitted to any State hospital or asylum for the insane shall be maintained and treated, while in the institution, at the expense of the State, but the cost of clothing, transportation and other incidental expenses not constituting any part of the maintenance or treatment, shall be defrayed at their own expense, or that of the county from which they were admitted. "^^ 795. Judge to inquire into pecuniary condition of person charged with lunacy. Section 16. "It shall be the duty of the county judge, at the time of each inquest in lunacy, to inquire into the pecuniary condition of the person alleged to be insane and that of the relatives who are bound by law to maintain him. Patients committed to any State hospital or asylum for the insane shall be designated as private or county patients. Private patients are such as are of sufficient pecuniary ability to pay for their own clothing and incidental expenses while in the institution, and all others shall be entered upon the docket as county patients. "^^ 796. Clerk's statement to superintendent of hospital. Sec- tion 17. "Upon the entry of an order of commitment of any in- 17 — Sections 13 and 14, chapter tated Statutes of Illinois, Vol. 2, 85, "Lunatics." Starr & Curtis p. 2655; Kurd's R. S. of 111., IB05, Annotated Statutes of Illinois, Vol. p. 1341. 2, p. 2655; Kurd's R. S. of 111., 19— Section 16, chapter 85, 1905, p. 1340. "Lunatics." Starr & Curtis Anno- 18 — Section 15, chapter 85, tated Statutes of Illinois, Vol. 2, "Lunatics." Starr & Curtis Anno- p. 2655; Kurd's R. S. of 111., 1905, p. 134L 708 THE LAW OF ESTATES. sane person to a hospital for the insane, the clerk of the County Court shall send a copy of the finding of the jury or com- mission and of the medical certificate provided for in section 9 of this act to the superintendent of the hospital for the insane to which such insane person is ordered to be committed, and such superintendent shall, without delay, admit such insane per- son as a patient in said hospital: Provided, that if there is no room in such hospital for the admission of the person com- mitted thereto, and that such county shall have its full quota of patients in said hospital, the superintendent thereof shall return to said county one quiet, harmless chronic patient, but should said coimty not have its full quota of patients in said hospital, the superintendent shall return one quiet, harmless chronic patient to any county which may be in excess of its quota; and should no county be in excess of its quota, the sup- erintendent shall select the most quiet, harmless chronic patient in said hospital and return him to the coiuity from which he was committed, in order to make room for the patient recently adjudged insane: Provided, further, if a hospital or asylum for the chronic or incurable insane shall be established, such chronic patient may be sent to such hospital or asylum for the chronic or incurable insane: Provided, further, that in case it shall not be found possible to admit such patient to a State hospital or asylum for the insane, the court where such inquest is had may make such further order in the matter as may be requisite and lawful."'*' Where the State authorities required the county authorities to receive a patient, and the county authorities did so receive and for a long time have supported the patient as shown by evidence, it is held, the county is not required by law to render that service gratuitously. The hus- band of the patient was liable for support while insane and cared for by the county. This rests on the general duty of the husband to supply his wife with necessaries.-^ And the 20 — Section 17, chapter 85, Jones & Addington's Supplements "Lunatics." Starr & Curtis Anno- thereto. Vol. 2, p. 2655; Vol. 4, p. tated Statutes of Illinois, with 815; Vol. 5, p. 373; Kurd's R. S. of III., 1905, p. 1341. COMMITMENT OF LUNATICS. 709 authorities establish and settle the rule, "there can be no rea- son why the public should be charged with the support of a person having ample means for that purpose, and to support such as a public charge, where such have ample means, would not be just." An insane person having property adequate to his support is not a pauper, and consequently the county is not liable for his support.-^ 797. Warrant of commitment in duplicate — endorsement — woman protected. Section 18. "For the conveyance of any patient to a hospital or asylum for the insane, the clerk shall issue a warrant, in duplicate, directed to the sheriff or any suit- able person, preferring some relative of the insane person, when desired, commanding him to apprehend such insane person and deliver him to the superintendent. When necessary, the clerk may authorize the employment of one or more assistants; but no female patient shall thus be taken to the hospital or asylum by any person not her husband, father, brother or son, without the attendance of some female of reputable character and ma- ture age. Upon receiving the patient, the superintendent shall indorse upon the warrant his receipt, naming the person or per- sons from whom the patient was received, and one copy of the warrant, so indorsed, shall be returned to the clerk, to be filed with the other papers relating to the case, but the other shall be left with the superintendent, and the person delivering the patient shall indorse thereon that he has so delivered him, and said duplicate warrant shall be prima facie evidence of the facts set forth therein and in said indorsement."-^ 798. Private patient not received — except when. Section 19. "No private person shall be received into any State hospital or asylum for the insane, imless at or before the time of his ad- 21 — Schelling v. County of 22 — Dandurand v. County of Kankakee, 96 111. App. 434; Way Kankakee, 196 111. 540; City of Al- V. Cox, 24 Ala. 337; Alner v. ton v. County of Madison, 21 111. Plummer, 4 Greenl. (Me.) 258; 114. Brookfield v. Allen, 6 Mass. 585; 23— Section 18, chapter 85, Goodale v. Lawrence, 88 N. Y. 513. "Lunatics." 710 TPIE LAW OF ESTATES. mission there shall have been filed with the superintendent a bond, with two good and sufficient sureties, approved by the county judge, executed to the trustees of the institution, and conditioned that the obligors shall find the patient in suitable and sufficient clothing, while he may remain in the institution, •and promptly pay for any articles of clothing furnished or other necessary incidental expenses incurred by the institution on account of said patient, and remove him when required by the trustees; and in case of failure upon the part of the trustees to recover upon any bond as approved by the county judgCj the county shall become liable to the institution for the amount due from said obligors."-* 799. Communication with friends permitted — when. Sec- tion 20. "Every patient admitted into any public or private hospital or asyliun for the insane shall have all reasonable op- portunities and facilities for communication with his friends, and shall be permitted to write and send letters, provided they contain nothing of an immoral or personally offensive charac- ter, and letters written by any patient to any member of the board of trustees, or of the State Commissioners of Public Charities, or to any State or county official shall be forwarded unopened. ' '^^ 800. Restraint allowed only when. Section 21. **No pa- tient shall be placed in restraint or seclusion, in any hospital or asylum for the insane in this State, except by the order of the physician in charge; all such orders shall be entered upon a record kept for that purpose, which shall show the reason for the order in each case, and which shall be subject to inspec- tion by the State Commissioners of Public Charities and such record shall at all times be open to public inspection. "^^ 24— Section 19, chapter 85, 25— Section 20, chapter 85, "Lunatics." As to citations, notes "Lunatics." 23, 24. See Starr & Curtis Anno- 26 — Section 21, chapter 85, tated Statutes of Illinois, Vol. 2, "Lunatics." As to citations, notes p. 2656; Kurd's R. S. of 111., 1905, 25, 26. See Starr & Curtis Anno- p. 1341. tated Statutes of Illinois, Vol. 2, COMMITMENT OF LUNATICS. 711 801. Authority to discharge patients vested in trustees. Sec- tion 22. "Authority to discharge patients from either of the State institutions for the insane is vested in the trustees, but may be delegated, by a formal vote, to the superintendent, under such regulations as they may see fit to adopt. Discharges may be made for either of the following causes, namely: Because the person adjudged to be insane is not insane, or because he has recovered from the attack of insanity or because he has so far improved as to be capable of caring for himself, or because the friends of the patient request his discharge, and in the judgment of the superintendent no evil consequence is likely to follow such discharge, or because there is no prospect of further improvement under treatment, and the room occupied by an incurable and harmless patient is needed for the admis- sion of others who are unsafe to be kept at large or probably curable. Authority is also vested in the trustees to release the patients on parole for any term not exceeding three months; and, if not returned to the institution within that period, a new order of commitment from the county judge shall be necessary in order to the readmission of any such paroled patient to the institution: Provided, that the court may make such order upon the old verdict, if satisfied that the patient in question is still insane. But no patient who is violent, dangerous or more than usually troublesome or filthy, shall be discharged from any State institution and sent back to any county farm, almshouse or insane department thereof. And no patient who has not recovered his reason or who is charged with crime shall be declared discharged until at least ten days after notice shall have been given to the judge of the County Court having juris- diction in the case, in order to enable the said judge to make some proper order as to the disposition of the said patient, when so discharged, which order shall be entered of record, and a copy thereof furnished to the superintendent, and to the State Commissioners of Public Charities."-^ p. 2656; Kurd's R. S. of 111., 1905, 27— Section 22, chapter 85, p. 1342. "Lunatics." 712 THE LAW OF ESTATES. 802. Not discharged without suitable clothing and money. Section 23. "No person shall be discharged from a State hos- pital or asylum for the insane without suitable clothing and a sum of money, not exceeding twenty dollars, sufficient to de- fray his expenses home, which shall be charged to the patient, if a private patient, and if a county patient, to the county, and collected as other debts due the institution are collected."-^ 803. Entitled to habeas corpus. Section 24. "Every person confined as insane shall be entitled to the benefit of the writ of habeas corpus, and the question of sanity shall be decided at the hearing and if the judge shall decide that the person is in- sane such decision shall be no bar to the issuing of the writ a second time whenever it shall be alleged that such person has been restored to reason; and if said person shall be ad- judged sane, on presentation of a certified copy of said judg- ment to the County Court where the inquest was had, such court shall rescind and set aside the judgment of insanity. "^^ 804. Discharged — receipt of superintendent. Section 25. "Whenever notice shall have been given to the judge of any County Court that any patient committed to any hospital or asylum of this State, under the order of said court, has been discharged cured^ upon receipt of such notice signed by the superintendent the judge shall enter an order restoring the pa- tient in question to all his rights as a citizen, and, if a conserva- tor of his estate shall have been appointed, the said conservator shall be removed. At any time, subsequent to the discharge of any patient, the judge of the County Court may hear evidence tending to show that said patient has been restored to reason, and, if satisfied of his recovery, may make and enter a similar order, and thereafter the said patient shall not be liable to be again committed to any hospital or asylum for the insane with- out a new inquest in his case. "^° 28 — Section 23, chapter 85, 30 — Section 25, chapter 85, "Lunatics." "Lunatics." As to citations, notes 29 — Section 24, chapter 85, 27, 28, 29, 30. See Starr & Curtis "Lunatics." Annotated Statutes of Illinois, Vol. COMMITMENT OF LUNATICS. 713 805. Escape — death of patient proceedings. Section 26. *'If any patient shall escape from the hospital it shall be the duty of any sheriff or officer of the peace in any county in which he may be found to apprehend and detain him, and to report the same to the county judge of said county, who shall return him to the institution at the expense of the county from which he was committed." Section 27, "In the event of a sudden or mysterious death of any inmate of any public or private hos- pital or asylum for the insane, a coroner's inquest shall be held, as provided by law in other cases. Notice of the death of a patient and the causes thereof shall, in all cases be given to the judge of the court having jurisdiction over such patient^ and the fact of his death, with the time, place and aUeged cause shall be entered upon the docket. "^^ 806. Conspiracy to commit person to hospital or asylum — penalty. Section 28. "Any person who shall conspire to com- mit any person to any hospital or asylum for the insane unlaw- fully or improperly, or any person who shall receive or detain any insane person contrary to the provisions af this act, or any person who shall maltreat any insane person, or any person who shall violate any provision contained in this act, shall be deemed guilty of a misdemeanor, and, upon conviction thereof shall be fined not exceeding one thousand dollars, or imprisoned not exceeding one year, or both, at the discretion of the court in which such conviction is had."^^ 807. Costs of proceedings. Section 29. "The costs of pro- ceedings in inquests of lunacy in case of county patients shall be defrayed from the county treasury; but in case of private patients, if the person alleged to be insane is found to be in- sane, they shall be paid by his guardian or conservator or rela- tives out of his estate, as the court may direct. In all cases 2, p 2657; Kurd's R. S. of 111., 32— Section 28, chapter 85, 1905, p. 1342. "Lunatics." See Starr & Curtis 31 — Sections 26, 27, chapter 85, Annotated Statutes of Illinois, "Lunatics." Vol. 2, p. 2658; Kurd's R. S. of III., 1905, p. 1343. 714 THE LAW OP ESTATES. where the person alleged to be insane is found not to be insane, the court may, in its discretion, require that the costs shall be paid by the person who filed the statement provided for in sec- tion 3 of this act and award judgment against him therefor. The fees paid for jury service, attendance of witnesses and ex- ecution of legal process shall be the same which are allowed by law for similar service in other cases. For services as commis- sioner to make inquests in lunacy the sum of five dollars per day and the actual and necessary traveling expenses shall be allowed and paid to each person so employed. But when any person having a residence in this State shall be adjudged to be insane by the County Court of any county of which he is not a resident, the judge of the County Court in the county in which the said person resides shall be furnished with a transcript of the record and finding in the case, and thereupon the said county shall become liable for the costs of proceedings and for the cost of clothing, transportation and other incidental ex- penses of such patient while in the institution. And when any soldier or sailor in any Soldiers' or Sailors' Home shall be de- clared insane, such soldier or sailor shall be received by some State hospital. "2* 808. Act does not apply to persons in custody on criminal charge — convicts in penitentiary admitted when — non-resident may be admitted, when. Section 30. "Nothing in this act shall be construed to apply to insane persons, or persons supposed to be insane, who are in custody on a criminal charge." Section 31. "Insane convicts in the State penitentiaries may be com- mitted to the asylum for insane criminals without formal re- quest on the certificate of the penitentiary physician." Sec- tion 32. "Insane persons not residents of this State shall not be detained in any private institution for the insane of this State unless committed thereto in accordance with the laws of the State or Territory of which they are residents, or with the laws of this State. "^^ 33 — Section 29, chapter 85, 34 — Section 30, chapter 85, "Lunatics." "Lunatics." See Starr & Curtis COMMITMENT OF LUNATICS. 715 809. Administration and enforcement of laws entrusted to state commissioners of public charities. Section 33. "The ad- ministration and enforcement of the laws relating to the insane of this State and their treatment, in or out of hospitals or asy- lums for the insane, is entrusted to the State Commissioners of Public Charities, who shall have power, from time to time, with the approval of the Governor and Attorney General, to make rules and regulations on the following matters, so far as the same are not inconsistent with any laws of this State. 1. The licensing of all houses or places in which any person can be lawfully detained as insane or of unsound mind, and the withdrawal of licenses granted by them for cause shown, with the approval of the Governor and Attorney General. 2. Regu- lation of the forms to be observed relating to the commitment, transfer of custody and discharge of lunatics not in conflict with the provisions of this act. 3. The visitation and inspec- tion of all houses or places in which any persons are detained as insane and of all persons detained therein. 4. Reports and information to be furnished by the managers or trustees and medical superintendents of all houses or places subject to the provisions of this act, and by the boards of auxiliary visitors herein provided for. In case it shall, in the judgment of the State Commissioners of Public Charities, become necessary to institute prosecutions under this act, they are hereby author- ized to call upon the Attorney General and upon the State's Attorneys of the several counties for any aid and assistance which may be requisite, and the said officers are hereby di- rected and required to render such assistance upon their appli- cation : Prt>vided, that existing private institutions in this State shall not be amenable to prosecution under this act until the Board of State Commissioners of Public Charities shall ha^e made such rules and allowed thirty days' notice within which to take out license and shall have decided upon the applica- tion. "^^ Annotated Statutes of Illinois, Vol. 35 — Section 33, chapter 85, 2, p. 2658; Kurd's R. S. of 111., "Lunatics." 1905, pp. 1342, 1343. 716 THE LAW OF ESTATES. 810. State commissioners of public charities — powers. Sec- tion 34. "The State Commissioners of Public Charities shall have power to appoint boards of auxiliary visitors of all county almshouses, jails and other house or places other than State or licensed private institutions for the care of the insane, in which any person of unsound mind is or may be detained; one such board shall be appointed in every county in the State, to be composed of three persons, one of whom may be a woman and at least one of whom shall be a qualified physician. The com- missioners may remove said board or any member thereof and fill vacancies; at least once a year members who have failed to act for a year past shall be removed. No compensation or al- lowance for expenses whatever shall be allowed or paid to such visitors. It shall be the duty of any and all persons in charge of each and every almshouse or jail, or of any house or place within the county in which any person of unsound mind is de- tained, except State and licensed private hospitals or asylums for the care of the insane, to admit any or all of the visitors appointed for said county, in every part of such institution, and to render them every facility within their power to enable them to make in a thorough manner their visit, inspection and ex- amination, which are hereby declared to be for • a public pur- pose, and to be made with a view to the public welfare. The boards herein authorized shall make such inspection and report as the State Commissioners of Public Charities may prescribe and require: Provided, that all State and licensed private hos- pitals or asylums for the care of the insane shall be visited by the State Board of Charities only."'® 811. Copies of law to be printed by commissioner of State contracts — early stages of insanity — treatment. Section 36. "The Commissioner of State Contracts shall cause to be printed in pamphlet form a sufficient number of copies of this act, etc., for the information of county officials and of the public. ' ' Sec- 36— Sections 34, 35, chapter 85, tated Statutes of Illinois, Vol. 2, "Lunatics." Starr & Curtis Anno- pp. 2659, 2660; Kurd's R. S. of 111., 1905, p. 1344. COMMITMENT OF LUNATICS. 717 tion 37. "Any person who may be in the early stages of in- sanity who may desire the benefit of treatment in a State or licensed private hospital for the insane as a voluntary patient, may be admitted to such hospital on his own written applica- tion, accompanied by a certificate from the County Court of the county in which such applicant resides, stating that such person is a private or county patient, as the case may be, and such person shall, if admitted to a State or licensed hospital for the insanCj have the same standing as other private or county patients : Provided, that all voluntary patients shall have the right to leave the hospital at any time on giving thi'ee days' notice to the superintendent. "^'^ 812. Acquittal of crime on plea of insanity — proceedings. Section 38. "In all cases where any person is sent to a State hospital for the insane, being acquitted of crime on the plea of insanity, or being under indictment for crime, the State's Attorney in charge of the case shall officially notify the super- intendent of the hospital to which the accused is sent, of any indictment pending against such person, or of the fact that the accused has been acquitted of his crime, on the plea of insanity, and it shall be the duty of the superintendent so notified, in case such superintendent shall at any time discharge the ac- cused, to officially notify the State's Attorney of the fact of such discharge and the reasons therefor. "^^ 813. Repeal. Section 39. All acts and parts of acts incon- sistent herewith are hereby repealed, also act of March 21, 1874, and amendatory act of June 15, 1887.^^ 814. Superintendent to furnish clerk with list — penalty. Paragraphs 40 and 41, sections 1 and 2, act of 1887, approved June 8, 1887. "That each superintendent of any hospital for 37 — Sections 36, 37, chapter 85, "Lunatics." See as to notes 37, 38, "Lunatics." 39. Starr & Curtis Annotated 38 — Section 38, chapter 85, Statutes of Illinois, Vol. 2, p. "Lunatics." 2660; Kurd's R. S. of 111., 1905, pp. 39— Section 40, chapter 85, 1344, 1345. 718 THE LAW OF ESTATES. the insane in this State, shall hereafter, on the first day of January and July of each year, furnish the clerk of the county court of the proper county thereof, with a full and complete list of all insane patients confined in said hospital from said county, stating the date of admission of each, whether said patients be paupers, the present mental and physical condition of each; also giving the names of such as may have died or been discharged since last report, with date of such death or dis- charge. " Any such superintendent failing to comply with the foregoing section shall be liable to a fine of one hundred dollars for each failure, to be collected by suit, before a justice of the peace of the county wherein such hospital is situate, on com- plaint of such clerk of the County Court, or other person hav- ing relatives or friends confined in said hospital."*" 40 — Paragraphs 40, 41, sections 1 and 2, chapter 85, "Lunatics." Kurd's R. S. of 111., 1905, p. 1345. CHAPTER XLVI INVESTMENT OF MONEY, LEASING, MORTGAGING AND SELLING REAL ESTATE BY CONSERVATORS Sec, 815. Investment of money. 816. Leasing and mortgaging real estate. 817. Petition to mortgage. 818. Conservator's sale of real es- tate; petition, notice, docket, practice, order of sale. 819. Presumption of jurisdiction. 820. No collateral attack on rec- ord, when. 821. Powers conferred by statute upon the court. 822. Return of sale, approval, rec- ord, title, proceeds of sale. Sec. 823. Sufficiency of sureties. How protected. 824. Removal of conservator; sum- mons to show cause; notice. 825. Resignation of conservator; successor; delivery to same. 826. Non-resident ward; powers of conservator. 827. Sale of real estate of such ward. 828. Notice, petition; sale of non- resident wards' real estate. 829. Bond for faithful application of money for costs. Sec. 815. Investments of money. *'It shall be the duty of the conservator to put and keep his ward's money at interest, upon security to be approved by the court, or invest the same in United States bonds or other United States interest bearing securities. Personal security may be taken for loans not ex- ceeding $100, Loans in larger amounts shall be upon real estate security. No loan shall be made for a longer time than three years, unless authorized by the court: Provided, the same may be extended from year to year, without the approval of the court. "^ 816. Leasing and mortgaging real estate. ''The conserva- tor may lease the real estate of the ward, upon such terms and 1— Section 18, chapter 86, Vol, 2, p. 2667; Kurd's R, S. of "Lunatics," etc, Starr & Curtis 111., 1905, p, 1348. See also Wing Annotated Statutes of Illinois, v. Dodge, 80 111., 564; In re Hall, 19 111. App, 295. 719 720 THE LAW OF ESTATES. for such length of time as the County Court shall approve." Section 19. "The conservator may by leave of the County Court, mortgage the real estate of the ward for a term of years, or in fee."^ 817. Petition to mortgage. Section 21. "Before any mort- gage shall be made, the conservator shall petition the County Court for an order authorizing such mortgage to be made, in which petition shall be set out the condition of the estate and the facts and circumstances on which the petition is founded, and a description of the premises sought to be mortgaged." Section 22. "No decree of strict foreclosure shall be made upon any such mortgage, but redemption shall be allowed, as is now provided by law in cases of sales under executions upon common law judgments."^ 818. Conservator's sale of real estate — petition — notice — docket — practice — order for sale. Section 23 of Chapter 86, provides: "On the petition of the conservator, the County Court of the county where the ward resides, or if the ward does not reside in the State, of the county where the real estate or some part of it is situated, may order the sale of the real estate of the ward for his support and that of his fam- ily when the court shall deem it necessary, or to invest the pro- ceeds in other real estate, or for the purpose of otherwise in- vesting the same, or for the purpose of paying the debts of the ward or the education of the children of said ward." Section 24. "The petition shall set forth the condition of the estate and the facts and circumstances on which the petition is founded, and shall be signed by the conservator and verified by his affidavit, and shall be filed at least ten days before the com- mencement of the term of court at which the application shall be made." Section 25. "Notice of such application shall be 2 — Sections 19 and 20, chapter 86, "Lunatics," etc. Starr & Cur- 86, "Lunatics," etc. tis Annotated Statutes of Illinois, 3— Sections 21 and 22, chapter Vol. 2, p. 2667; Kurd's R. S. of III., 1905, p. 1348. INVESTMENT OF MONEY, ETC. 721 given to all persons concerned by publication in some newspaper published in the county where the application is made, at least once in each week for three successive weeks or if no newspaper is published in such county by setting up written or printed notices in three of the most public places in the county at least three weeks before the session of the court at which such appli- cation shall be made. The ward shall be served with a copy of such notice at least ten days before the hearing of such applica- tion. Such service may be proved in the same manner as the service of a copy of a bill in chancery." Section 26. "Such application shall be docketed as other causes, and the petition may be amended, heard or continued for further notice or for other cause. The practice in such cases shall be the same as in other cases in chancery." Section 27. "The court shall direct notice of the time and place of sale to be given, and may direct the sale to be made on reasonable credit, and require such se- curity of the conservator or purchaser as the interest of the ward may require."'* 819. Presumption of jurisdiction. The presumption is in favor of the jurisdiction of a court of general jurisdiction, without the facts appearing in the record; on the other hand, there is no presumption in favor of the judgment of a court of inferior and limited jurisdiction; but the facts must appear in the record, showing the jurisdiction. The rule is well set- tled as applying to courts of limited jurisdiction, that the court, to acquire jurisdiction of the parties, has only to have them before it, and whether by legal notice, by service, or voluntary appearance, does not matter. And where the record shows, or the court finds this jurisdictional fact the record cannot be contradicted or questioned in a collateral proceeding. It is true, that if, by an inspection of the whole record, it is seen that 4 — Sections 23, 24, 25 and 26, ences made by Starr & Curtis on chapter 86, "Lunatics," etc. Starr page 2668 of Vol. 2; Searle v. Gal- & Curtis Annotated Statutes of braith, 73 III. 269; Wing v. Dodge, Illinois. Vol. 2, pp. 2667, 2668; 80 111. 564; Dodge v. Cole, 97 111. Huvd's R. S. of 111., 1905, p. 1348. 338; Gardner v. Maroney, 95 111. See also statutory cross refer- 552. 46 722 THE LAW OF ESTATES. there could not have been jurisdiction of the person, then the prima facie case would be overcome. But where the court has adjudged that there was jurisdiction of the person, the court on review will not look beyond the record, or receive evidence outside of it, to disprove the finding. In this respect the ques- tion can only be tried by the record.^ 820. No collateral attack on record when. When the order or decree shows, and the court finds jurisdictional facts, the proceedings for sale of real estate by a conservator cannot be contradicted or questioned in a collateral proceeding. Where a decree recited that the County Court had appointed a con- servator for the defendant, and that the latter had been ascer- tained by a jury, according to the form of the statute, to be an insane person, it was held, that he could not be allowed to con- tradict the finding of the decree, so far as it related to the ap- pointment of a conservator;*^ and this doctrine was upheld and applied in analogous cases. 821. Powers conferred by statute upon the court. Those conferred by the act in question under sections 23, 24, 25, 26, 27.'' And when it is deemed necessary by the court in proceed- ings for conservators' sales, it is competent for the court to au- thorize lands surveyed, platted and subdivided.® And in such proceeding the court may assign dower and homestead.® The notice of such proceedings must be given as required by statute strictly.^" But it is held sufficient in case of application for sale by non-resident guardian, if notice is published in daily pa- 5 — Osgood V. Blackmore, 59 111. Osgood v. Blackmore, 59 111. 265; 264; Jackson v. Spink, 59 111. 409; Wing v. Dodge, 80 111. 564; Dodge Kinney v. Knoebel, 47 111. 417; v. Cole, 97 111. 338. McCormick v. Wheeler, 36 111. 7 — For statute citation see Ante 114; Hamilton v. Lubukee, 51 111. 818. 415; Griffith v. Bogert, 18 How. 8— Section 11, chapter 109, U. S. 158; Krieger v. Krieger, 221 "Plats." Ante 739. 111. 479. 9 — Section 44, chapter 41, 6_Searle v. Galbraith, 73 III. "Dower." Ante 630. 269; Fitzgibbon v. Lake, 29 111. 10— Section 25, chapter 86. 165; Gondy v. Hall, 30 111. 109; Ante 818. INVESTMENT OF MONEY, ETC. 723 per, three insertions in each successive week, the first time not less than thirty days before presentation of the petition of the time and place, requesting all interested parties to show cause why prayer of petition should not be granted.^^ 822. Return of sale — approval — ^record — title^ — proceeds of sale. Section 28, provides : "It shall be the duty of the con- servator making such sale, as soon as may be, to make return of such sale to the court granting the order, which, if approved, shall be recorded, and shall vest in the purchaser or purchasers all the interest of the ward in the estate so sold." Section 29 provides : ' ' An account of all moneys and securities received by any conservator for the sale of real estate of his ward shall be returned on oath of such conservator to the County Court of the county where letters of conservatorship were obtained, and such money shall be accounted for and subject to the order of the County Court in like manner as other moneys belonging to such ward. In case of sale for reinvestment in this State, the money shall be reinvested under the direction of the court. ' '^- When the sale is fairly made by the guardian through an agent, and for a good price, it will not be set aside because the guardian was ab- sent, and where the guardian adopts the act of the agent. If the crier of a judicial sale of real estate on behalf of the guardian of an insane person states publicly, at the sale, that the guard- ian will pay certain assessments on the property, which is not done, this will furnish no ground to set aside the sale by the purchaser, or furnish any grounds of equitable relief. His rem- edy, if any, is at law, for a failure of consideration, when sued on his notes for the purchase money." The following rule is laid in the case of Dodge Conservator v. Cole.^* In every suit claiming a right when it is denied, it is the duty of the court to ascertain in the first place whether the fact or combination of 11— Wing V. Dodge, 80 111. 56i; Annotated Statutes cf Illinois, Ante 737, 738. Vol. 2, p. 2669; Kurd's R. S. of 12— Sections 28, 29, chapter 86, 111., 1905, p. 1348. "Lunatics," etc. Starr & Curtis 13— Wing v. Dodge, 80 III. 564. 14—97 111. 338. 724 THE LAW OF ESTATES. facts exists upon which the right depends and in the next place, to determine whether the law, as applicable to the facts found, gives the right claimed, and the performance of those duties is the exercise of judicial power. The fact that no precedent can be found in which relief has been granted under a similar state of facts is no reason for refusing it/^ Judicial sales are not within the Statute of Frauds, and are binding upon the bidder or purchaser without any written contract or memorandum of sale signed by him or his agent. ^"^ Where a bidder at a con- servator's sale had notice of a reservation, made by the con- servator, of the amount of a judgment for damages for a part of the land taken for the opening of a highway, a question of fact is to be determined from the evidence. The purchaser at a conservator's sale has a right to appear before the court and object to the report of sale if any statements therein are deemed by him incorrect, and if he does not do so he is bound by the decree approving the sale.^' 823. Sufficiency of sureties — ^how protected. Section 30, provides: "It shall be the duty of the County Court, at each accounting of the conservator, to inquire into the sufficiency of his sureties, and if at any time it has cause to believe that the sureties of a conservator are insufficient or in failing circum- stances, it shall, after summoning the conservator, if he be not before the court, require him to give additional security." Sec- tion 31. "Upon the application of the surety of any conserva- tor, and after summoning the conservator, the court may, if it believes him to be insolvent or in doubtful circumstances, re- quire him to give counter security to his sureties. "^^ 15 — Curtis V. Brown, 29 111. 201; and cases cited under section of Voris V. Sloan, 68 111. 588. statute in question; Kurd's R. S. 16— Chandler v. Morey, 195 111. of 111., 1905, p. 1102. 606; 6 Ballard on Real Property, 17 — Chandler v. Morey, 195 111. sec. 850; Robertson v. Smith, 94 606; Woerner's Am. Law of Ad- Va. 250; Andrews v. O'Mahoney, ministration, Vol. 2, 2d ed., marg., 112 N. Y., 567; see also section 2, p. 1057; Overdeer v. Updegraff, 69 chapter 59, "Frauds and Per- Pa. St. 110; Dodge v. Cole, 97 111. Juries." Starr & Curtis Annotated 338. Statutes of Illinois, Vol. 2, p. 1997, 18— Sections 30, 31, chapter 86, INVESTMENT OF MONEY, ETC. 725 824. Removal of conservator — summons to show cause — no- tice. Section 32. "The county court may remove a conserva- tor for his failure to give bond or security or additional or counter security when required, or for failure to make inven- tory or to account and make settlement, or support the ward, or when he shall have become insane, or have removed out of the State, or become incapable or unsuitable for the discharge of his duties, or for failure to discharge any duty required of him by law or the order of the court, or for other good cause. ' * Section 33. "Before removing a conservator the court shall summon him to show cause why he should not be removed for the causes alleged. If the conservator has left the State or cannot be served with process, he may be notified in the same manner as non-resident defendants in chancery. "^^ 825. Resignation of conservator — successor appointed — de- livery to same. Section 34. "When it appears proper the court may permit the conservator to resign his trust, if he first settles his accounts and delivers over the estate as by the court directed." Section 35. "Upon the removal, resignation or death of a conservator, another may be appointed, who shall give bond and security, and perform the duties prescribed by this Act. The court shall have power to compel the conserva- tor so removed or resigned, or the executor or administrator of a deceased conservator to deliver up to such successor all the goods, chattels, moneys, title papers and other effects in his custody or control belonging to the ward; and upon failure to so deliver the same, to commit the person offending to jail until he shall comply with the order of the court."-" 826. Non-resident ward — powers of conservator. Section 41 provides: "The conservator, guardian, curator or committee "Lunatics," etc. Starr & Curtis 20 — Sections 34 and 35, chapter Annotated Statutes of Illinois, S6, "Lunatics," etc. Starr & Cur- Vol. 2, p. 2669; Kurd's R. S, of tis Annotated Statutes of Illinois, 111., 1905, p. 1349. Vol. 2, pp. 2669, 2670; Kurd's R- 19— Sections 32 and 33, chapter S. of 111., 1905, p. 1349. 86, "Lunatics," etc. 726 THE LAW OF ESTATES. of any non-resident, idiot, lunatic, insane or distracted person, spendthrift or drunkard, appointed in any of the United States or Territories, or any foreign country, in pursuance of the laws of any such State, Territory or country, may commence and prosecute in his name as such conservator, guardian, curator or committee, suits for the recovery of any real or personal property, or any interest therein in this State, belonging to any such idiot, lunatic, insane or distracted person, spendthrift or drunkard, or for any injury to such property, in any of the courts of record in this State having jurisdiction in similar cases by persons in their own. rights, and may collect, receive and remove to his place of residence any personal estate of his ward. "^^ When application is made by a non-resident con- servator or guardian of an insane person, the law does not require the petition to state the purposes for which the property is to be sold. It seems sufficient to confer jurisdiction for the petition to show that the court of the State where the con- servator resides has required the sale, without reference to the application of the proceeds. And where the statute of Massa- chusetts authorizes the Probate Court to appoint a married woman guardian of an insane person, without the concurrence of her husband, and the court appoints the wife of an insane person as his guardian, her acts will be legal and binding, whether the statute contemplates such an appointment or not.-^ By comity existing between the States, a foreign guardian of an insane person may sue in this State in his representative capacity.^^ "Where the insane person was a resident of the State of Kansas, and the defendant in error was his conservator by virtue of an appointment made by the Probate Court of Republic county, Kansas, the bill styled the complainant therein, "Isaac McClun, by C. G. Bulkley, conservator and guardian." It was held that section 41 of chapter 86 of the 21 — Section 41, chapter 86, 4, p. 817, and cases cited; Kurd's "Lunatics," etc. Starr & Curtis R. S. of 111., p. 1350. Annotated Statutes of Illinois, 22— Wing v. Dodge, 80 111. 564. with Jones & Addington's Supple- 23 — Campbell v. Millar, 84 111. ments thereto. Vol. 2. p. 2671; Vol. App. 215. INVESTMENT OF MONEY, ETC. 727 Hevised Statutes, entitled ''Lunatics," etc., authorizes suits in "behalf of non-resident insane persons to be prosecuted in the name of the conservator of such insane person, and for the reason the complainant in this bill was not so styled the defend- ants thereto moved the court to dismiss the suit for want of jurisdiction. The court granted a cross-motion to amend the bill so as to make "C. G. Bulkley, conservator and guardian of said Isaac McClun, an insane person," a co-complainant in the bill, and such amendment being made, denied the motion to dismiss. Section 24 of chapter 110, entitled "Practice," authorized the amendment introducing the conservator as a party complainant in his own name. Retaining the insane per- son by the said conservator as a party was but an irregularity — not an error of reversible character.^* 827. Sale of real estate of such ward. Section 42 of the "Lunatic" Act, aforesaid, provides: "It shall be lawful for any such conservator, guardian, curator or committee of any non-resident idiot, lunatic, insane or distracted person, spend- thrift or drunkard, who shall obtain an order from the proper court in the State, Territory or country in which such conserva- tor, guardian, curator or committee was appointed, authorizing him to make application for the sale of his ward's real estate or personal property in this State, upon filing a certified copy of such order for record in the office of the clerk of the Circuit Court in the county in this State in which the property or the major part thereof is situated, by petition to such court to obtain an order authorizing such conservator, guardian, curator or committee to sell and transfer any such property or interest therein, belonging to any such idiot, lunatic, insane or distracted person, spendthrift or drunkard, and to make deeds and con- veyances thereof; which deeds and conveyances executed and acknowledged in pursuance to the laws of this State, or of the State, Territory or country in which such conservator, guardian, curator or committee was appointed, shall be effectual in law and equity to pass to the grantee or grantees therein all the 24— MoClun v. McClun, 176 111. 378. 728 THE LAW OF ESTATES. right, title and interest of such idiot, lunatic, insane or dis- tracted person, spendthrift or drunkard therein. The court ordering the sale may authorize any person to act as auctioneer of the property, but the deed shall be executed by the conserva- tor, guardian, curator or committee. "^^ 828. Sale of real estate of non-resident ward — notice — peti- tion. Section 43, of the Lunatic Act provides: "Notice of the time and place of presenting said petition to said Circuit Court shall be given by publication in the nearest newspaper for four successive weekSj the first of which publications shall be at least forty days before the time fixed for the presentation of said petition, requesting all persons interested to show cause why the prayer of said petition should not be granted. "^^ And it was held where the publication was not strictly in accordance with the statute, it was considered sufficient. 829. Bond for faithful application of money, and for costs. Section 44 of the Lunatic Act provides: "The said Circuit Court may, in its discretion, require such conservator, curator,, guardian or committee to file a bond, with sufficient securities^ conditioned for the faithful application of the money which may be received from any such property, for the benefit, and to the use of such idiot, lunatic, insane or distracted person, spendthrift or drunkard." Section 45. "In all suits by non- resident conservatorSj guardians, curators or committees they shall give a bond for costs as in cases of other non-residents."^^ 25— Section 42, chapter 86, 26— Section 43, Chapter 86, "Lunatics," etc. Part of law of "Lunatics," etc.; Wing v. Dodge, 1865, rewritten in act of 1874, ex- 80 111. 564. tended to conservators appointed 27 — Sections 44, 45, chapter 86, in foreign country, etc. Starr & "Lunatics," etc. Starr & Curtis Curtis Annotated Statutes of Illi- Annotated Statutes of Illinois, nois. Vol. 2, p. 2671; Kurd's R. S. Vol. 2, p. 2672; Kurd's R. S. of of 111., 1905, p. 1350. See also 111., 1905, p. 1350. See section 1, Wing V. Dodge, 80 111. 564; Camp- chapter 33, "Costs." Kurd's Stat- bell V. Millar, 84 111. App. 215; utes, 1905, p. 554. Morgan v. McClun V. McClun, 176 111. 378. Hoyt, 69 111. 489. CHAPTER XLVII RESTORATION OF REASON OF INSANE Sec. 830. Restoration of reason; notice to conservator. 831. Trial, judgment, settlement of accounts. Sec. 832. Appeals. 833. Compensation tors. of conserra- Sec. 830. Restoration of reason — notice to conservator. The Statute of Illinois relating to lunatics, etc., provides: "When any person, for whom a conservator has been or may be ap- pointed under the provisions of this Act, shall be restored to his reason, or in case such drunkard or spendthrift shall have become so reformed as to be a proper and safe person to have the care and management of his estate, such person may apply to the County Court of the county in which such conservator was appointed, to have said conservator removed, and the care and management of his property, or so much thereof as shall remain, restored to him." Section 38. "Notice of such in- tended application shall be given to the conservator ten days before the commencement of the term of the court to which the application shall be made."^ Where the Circuit Court of Han- cock county, Illinois, on notice, petition and proofs, declared a certain person a lunatic, and appointed a conservator of the property and effects of such on the verdict of the jury selected for such purpose, and continued the cause, the conservator so appointed, from time to time, made report of his acts and doings to the court appointing him; about three years after such pro- ceeding, the party adjudged insane filed his petition in that 1— Sections 37-38, chapter 86, "Lunatics," etc. Starr & Curtis Annotated Statutes of Illinois, Vol. 2, p. 2670; Kurd's R. S. of 111., 1905, p. 1349. 729 730 THE LAW OF ESTATES. court, alleging he was sane, and praying that a jury be em- panelled to try the question of his sanity and capacity to man- age his business affairs; and, that the conservator appointed by the court be discharged and his property restored to hira. On motion, the Circuit Court dismissed the petition for restora- tion to sanity at the costs of the petitioner, and the case on writ of error was taken to the Supreme Court. It was there held that the petition was between the same parties and re- lated to the same subject matter, recited the former proceedings and asked a further order, which when rendered would have been final. The petition was an application for further pro- ceedings in the former case, and should not prejudice the merits in such case. On the filing of such petition, the court below may require the original case to be redocketed, an issue formed and tried on the merits; and if it be found that the petitioner has regained his reason, order the conservator to return his property to him, otherwise to refuse the relief."'' 831. Trial, judgment, settlement of accounts. Section 39 of the act in question provides: "It shall be the duty of the court to which any such application, as provided in the foregoing section, is made, on proof that said conservator has been duly notified of such application, to cause a jury to be summoned to try the question whether said applicant is a fit person to have the care, custody and control of his or her property, and if the said jury return in their verdict that such person is a fit person to have the control of such property as aforesaid, then the court shall enter an order fully restoring such person to all the rights and privileges enjoyed before said conservator was appointed: Provided, that such conservator, so removed, shall be allowed a reasonable time to settle his accounts as such, and to pass over the money or property in his hands, and such removal shall not invalidate any contracts made in good faith by such conservator, while acting as such: Provided, further, that no application shall be entertained for the removal of any conservator appointed for any person under the provisions of 2— Ayers v, Mussetter, 46 111. 472. RESTORATION OF REASON OF INSANE. 731 this Act, within less than one year from such appointment, unless for neglect of duty or mismanagement of his trust. "^ Under section 5 of the act establishing probate courts {ante, 6), all probate matters, and all matters in relation to the appoint- ment of guardians and conservators, and the settlement of their estates, is transferred from the County Court to the Probate Court in all counties in the State of Illinois, where the latter court is established. On an application, under the statute, for the appointment of a conservator for an insane or distracted person, the true and proper test is, whether the defendant has sufficient mental capacity to transact ordinary business, and to take care of and manage his property. If he is incapable of understanding and acting with discretion in the ordinary affairs of life, then he is a person of unsound mind, and incapable of managing his estate. On the trial of such a person, it appeared he executed a deed conveying his, respondent's property, to a trustee, after the institution of the proceeding to declare him insane and incapable of taking care of and managing his prop- erty. Held: such act could have no special bearing on the merits of the case.* While the Probate Court has jurisdiction in the appointment of conservatorSj its jurisdiction is not exclusive. In a proper proceeding, and where the question might arise in a proceeding pending in the Circuit Court, in which a party properly before that court was supposed to be insane, it might properly try the issue without referring the case as to the ques- tion of insanity to the Probate or County Court. The Circuit Court has its jurisdiction conferred by the constitution, and such cannot be taken away by legislative enactment and trans- ferred to another court; but the legislature may confer con- current jurisdiction with the Circuit Court upon Probate and County Courts in certain matters that would not be exclusive in the latter courts.^ 3— Section 39, chapter 86, 4— Snyder v. Snyder, 142 111. 60. "Lunatics," etc. Starr & Curtis 5 — Klokke v. Dodge, 103 III. Annotated Statutes of Illinois, 124; Darling v. McDonald, 101 111. Vol. 2, p. 2670; Kurd's R. S. of 373; Hankins v. People, 106 111. 111., 1905, p. 1349. 732 THE LAW OF ESTATES. 832. Appeals. Section 40 of the act relating to Lunatics, etc., provides: "Appeals shall be allowed to the Circuit Court from any order or judgment made or rendered under this Act, upon the appellant giving bond and security as shall be directed by the court; but no appeal from an order removing a con- servator shall in anywise affect such order until the same be reversed. ' '^ 833. Compensation. Section 36 provides: "Conservators on settlement shall be allowed such fees and compensation for their services as shall seem reasonable and just to the court."' 628; Wilson v. People, 94 111. 426; to the record in such case and the Snyder v. Snyder, 142 111. 60. manner same is made up on ap- 6 — Section 40, chapter 86, peal, see Ayers v. Mussetter, 46 "Lunatics," etc. Starr & Curtis 111. 472. Statutes, etc.. Vol. 2, p. 2671; 7— Section 38, chapter 86, Kurd's Statutes, 1905, p. 1350; "Lunatics," etc. Starr & Curtis Snyder v. Snyder, 142 111. 60. As Statutes, etc.. Vol. 2, p. 2670; Kurd's Statutes, 1905, p. 1349. CHAPTER XLVIII COMMON DISASTER Sec. 834. Common disasters. 835. Presumption of death under the Roman or civil law. 836. Presumption of death under the common law of England. Sec 837. Inferences of survivorship rhay be drawn from the best evidence suggested by every case. 838. When insured and beneficiary die in same disaster; effect. Sec. 834. Common disasters. Where two or more persons lose their lives in a common disaster, like a shipwreck, railroad wreck, fire or other accident or disaster, it often becomes most important to ascertain who died first. This question when set- tled by reliable legal proof determines property rights and the succession thereto. 835. Presumption of death under the Roman or civil law. ''If a father and his son perished in the same battle or ship- wreck, the son, above the age of puberty, was presumed to have survived his father; under that age, to have pre-deceased him. This was upon the idea that in the former case the son was usually stronger, and the latter weaker than his father. So if persons perishing in the same disaster were all under fifteen, the presumption of survivorship was with the elder ; if all were over sixty, with the younger. Similarly, the wife was pre- sumed to have yielded first to the common peril. "^ 836. Presumption of death under common law of England. In the case of Middeke v. Balder,- Mr. Justice Carter, review- ing the English and American authorities, gives the civil and 1 — 24 Am. & Eng. Ency. of Law, of death under civil and common pp. 1027-1028, and authorities law rules. cited in notes under presumption 2 — 198 111. 594. 733 734 THE LAW OF ESTATES. common law rules, adopting and applying the latter in the case as the law of this State. "When two or more persons lose their lives in a common disaster, by the civil law a number of pre- sumptions of survivorship arise, based on age, sex and condition of health, but there is no presumption that they all died simul- taneously. At common law there is no presumption of survivor- ship, and if survivorship is claimed it must be proved, and the one having the burden of proof of such survivorship must fail if he cannot prove it. While there is no such presumption, the practical result of this rule is that the parties are treated as having all died at the same instant of time; and that no one of those thus dying synchronously takes from any of the others dying in the common disaster, by reason of the other's death. '^ This rule was practically settled in England in 1855 in the leading case.^ The common law rule of survivorship is gen- erally applied in all those States of the Union where the com- mon law was first extended. The code laws of Louisiana and California with slight modifications, as well as the final decisions of the courts of those States still hold to the rule of the civil law.* 3 — Underwood v. Wing, 4 De G. Goodrich, 3 Redf. 87; Cayne v. M. & G. 633, heard on appeal from Leach, 8 Mete. 371; (41 Am. Dec. the Master of the Rolls; Under- 523); Wing v. Angrave, 8 H. L. wood V. Wing, 19 Beav. 459. Cass, 183; Newhall v. Nichols, 75 4-Louisiana Code, Art. 936. 939; ^- ^- ^^' ^^^^^^^ ^- ^aHett, 23 Kan. Holister v. Corder, 76 Cal. 652. ^76; In re Ehle's Estate. 73 Wis. For a full discussion of the civil ^^^' P«" ^- B^"' ^^ South Caro- and common law rules in regard "^^ Equity (Cheves) 99; Whitley to legal presumption of survivor- ^- Equitable Life Assurance Soc. ship see the following authori- ^^ Wis. 176; Johnson v. Merri- ties: 1 Greenleaf on Evidence, t^^^' ^^ ^«- ^^^' Petition of Wil- 13th ed., sections 29, 30; 1 Jones ^^r. 20 R. L 126; Fuller v. Lin- on Evidence, section 60; Best on zee, 135 Mass. 468; Hildebrandt Presumptions, sections 142, 144; ^- Ames, 66 S. W. Rep. 128 2 Kent's Commentaries, 12th ed., (Tex.); United States Casualty 435, and cases cited in notes by Co. v. Kacer (Mo.), 69 S. W. the authors of the text-books Rep. 370; Cowman v. Rogers, 73 noted. Taylor v. Daplock, 2 Phill. Md. 406; Balder v. Meddeke, 92 (Eccl. Rep.) 261; In re Selwyn. 3 HI. App. 229; Meddeke v. Balder, ,Hagg (Eccl. Rep.) 748; Stinde v. 198 111. 590. COMMON DISASTER. 735 837. Inferences of survivorship may be drawn from the best evidence suggested by every case. It seems that if there is evi- dence arising from the age, sex or physical conditions of the person who perished, from which a reasonable inference of sur- vivorship might be drawn, such inferential proof may suffice. In any ease, if there is evidence arising from the nature of the accident, and the manner of death of the party, which tends to show that some one did in fact survive the others, the whole question is one of fact to be decided in each case by the jury before whom the case is brought.^ One of the earliest, if not the earliest case considered in this country was that of Pell v. Ball.^ B and his wife perished, on board of a steamboat, at sea, by the explosion of one of the boilers, which shattered the vessel and caused it to fall to pieces and sink in about one-half hour after the explosion. Upon evidence that Mrs. B was seen, and was heard to call loudly for her husband, immediately after the disaster, and that he was not heard to answer nor was heard or seen at any time after the explosion, it was held : That Mrs. B had survived her husband. The case is most important in this respect, independent of the excellent reasoning of the learned judge delivering the decision ; as the rules laid down in that case have been applied in many cases of common disaster since decided. The court said in that case:^ "There will gen- erally be found something in the condition of the parties, their age, strength, health and habits, which willj in some degree at least, rescue the decision from the imputation of rash conjec- ture, and place it rather upon the foundation of evidence and probability than tremulous presumption. Where there is any evidence whatsoever, even though it be but a shadow, it must govern in the decision of the fact."^ *'The common law encour- ages a resort to every fountain from which truth can be drawn ; it listens to witnesses; it looks into the internal evidence of things; it contemplates the whole of the circumstances, and 5—1 Greenleaf on Evidence, 7 — Pell v. Ball, 12 South Caro- 16th ed., sees. 29, 30. lina Equity (Cheves), 99-103. 6 — 12 South Carolina Equity 8 — Id., page 104. Reports (Cheves) 99. 736 THE LAW OF ESTATES. then draws its conclusions, according to the prepondering prob- ability. If the case is divested of proof and the exigency de- mands it, resort should be had to extraneous circumstances. If it contains internal evidence and no more, that must be resorted to. But if, to this, witnesses can be added, bearing positive testimony, or detailing facts from which reasonable inferences can be drawn, these furnish the most satisfactory proof. ^ "But because the plaintiffs are to prove the fact of survivorship, it does not follow that they are to prove it to demonstration. All reasonable inferences will be drawn from the best evidence, sug- gested by the case; and though at last we may be far from arriving at anything like certainty, although indeed, there may remain much obscurity and doubt, yet if we have evidence only sufficient to lead us out of the regions of conjecture, we may follow it." In the case of Johnson v. Merrithew'^^ evidence was heard to the effect that Mrs. Margaret P. Nickerson, one of the parties lost in the shipwreck, was, in January, 1875, while on a visit to her daughter in Boston, stricken with paralysis or some kindred malady that prostrated her bodily and confused and unsettled her mind. The court holding, with the ease of Whyte V. Mann}'^ "Death may be proved by showing facts from which a reasonable inference would lead to that con- clusion," and, "if death may be inferred from facts shown, it logically follows that the time of death may be fixed with more or less certainty in the same manner. "^^ In the Wisconsin case the court found from the evidence that the old man Abram ,died first, then his son James on his way to assist his father; and lastly the wife and children. The evidence admitted in that case is almost entirely circumstantial; the buildings are minutely described, the location of the rooms, the windows, doors, exits, and the furniture, particularly the beds occupied by the victims; also, the physical disabilities and the habits of the parties who lost their lives by fire occurring at the farm 9— Id., page 108. 12— In re Ehle's Estate, 73 Wis. 10—80 Me. 111. 445-462. 11—26 Me. 361. COMMON DISASTER. 737 house in which the deceased parties lived. The evidence of physical disability admitted and considered by the court shows that Abram was 82 years of age, in poor health, feeble and requiring considerable attention; that Helen was active and nervous and easily awakened ; and that James had a phlegmatic temperament, which made it at times difficult to awaken him. In summing up the evidence in that case the court say (page 462) : "The direct evidence establishes the fact that James uttered the cry under circumstances which made death certain to him within a few seconds; whereas, there is no e\idence that at that same moment of time the flames had penetrated the family sleeping room — much less that at that same moment death was equally imminent to the children and their mother. It is not the case of death to several from the same direct operating cause, as an explosion; nor yet the case of several burning to death in the same room, or in the same building, in the absence of all evidence tending to show the situation of the victims and the place of their origin and the progress of the fire. On the contrary the death of the several victims resulted from a succession of causes." 838. When insured and beneficiaiy die in same disaster — effect. In a ease involving the right to the proceeds of a policy of insurance upon the life of the husband for the benelit of the wife, where both perish in the same disaster. The court in the first instance treats all parties as having died at the same instant. In effect the rule, "that no one takes anji:hing from any of the others by reason of such other's death" is put in force in such case. The party claiming the fund must prove the fact of survivorship if he prevails." Where a benefit certificate provided, "that the benefits shall be paid to the heirs of the deceased member in case the named beneficiary dies before the insured"; if both the insured and the beneficiary perish in the 13— Fuller v. Linzee, 135 Mass. 66 S. W. Rep. 128; United States 468; Pardon v. Briscoe, 81 Tex. Casualty Co. v. Kacer (Mo.), S. 563; Hildebrandt v. Ames (Tex.), W. Rep. 370; Cawman v. Rogers, 73 Md. 406. 47 738 THE LAW OF ESTATES. same disaster the heirs or representatives of the beneficiary have the burden of proving, that the beneficiary became entitled to the benefit fund by reason of his or her surviving the insured; and, if they cannot make such proof the benefit will go to the heirs of the deceased member.^* The beneficiaries of a certificate in fraternal associations have no vested interest under the laws of Illinois.^^ In cases of ordinary property no one has a vested right in it during the lifetime of the absolute owner, but has only an expectancy, dependent upon the death of the owner during the lifetime of the expectant, and upon the further con- tingency that the owner does not dispose of the property by deed, gift or will made before his death.^^ 14— Meddeke v. Balder, 198 111. Railroad Brakemen, 146 111. 570; 590. Voigt V. Kersten, 164 111. 314. 15— Martin v. Stubbingo, 126 111. 16— Meddeke v. Balder, 198 111. 387; Benton v. Brotherhood of 590. CHAPTER XLIX FEES OF CLERKS Sec 839. Fees of clerks of probate courts in counties of the third class. 840. Payment in advance. 841. Repeal. 842. Act in relation to docket fee held unconstitutional. 843. Fees of clerks of county- courts in probate matters. Sec. 844. Remission of fees in county and probate courts in coun- ties of first and second class. 845. Repeal of acts in conflict with. 846. Record in case of appeal or writ of error; clerks' fees and costs. 847. Per diem to clerks of probate court in counties of second class. Sec. 839. Fees of clerks of Probate Courts in counties of third class. An Act to provide for fees of clerks of Probate Courts of the third class approved May 29th, 1879, in force July 1st, 1879.1 That the clerks of probate courts in counties of the third class shall be entitled to receive the fees herein specified for the ser- vices mentioned, and such other fees as may be provided by law for other services not herein designated. For taking proof of last will and testament, or codicil, when proved separately, and endorsing certificate of probate, thereon, and for entering order admitting to probate last will and testa- ment, or codicil, and granting letters testamentary, $7. For granting letters of administration, guardianship or con- servatorship, $5. For filing for any purpose, 25 cents. For taking and approving bond of executor or administrator, 1 — Par. 53, section 1, chapter 53, Jones & Addington's Supplements "Fees and Salaries." Laws of thereto. Vol. 2, pp. 1937, 1938; Vol. 1879, p. 164. Starr & Curtis An- 4, p. 626; Kurd's R. S. of 111., 1905, notated Statutes of Illinois, with pp. 1075, 1076. 739 740 THE LAW OF ESTATES. guardian, conservator, or any other bond required by law to be taken, $1. For certified copy of letters testamentary, of administration, of guardianship or conservatorship, $1. And in addition thereto, 15 cents for each one hundred words contained in said will or codicil. For issuing warrant to appraisers^ $1. For taking and filing renunciation of executor or of right to administer, 50 cents. For filing and docketing each claim against estates, and for entering' order allowing or dismissing same, $1.50. For entering order reinstating or refiling or redocketing each claim, $1.50. For filing and docketing proof of notice for adjustment of claims, $1. For filing and docketing assignment of claims or judg- ment, $1. On petition for appointment of conservator, and petition for sale of real estate by executor, administrator, guardian or con- servator, docketing and filing the same, a docket fee of $6. For each cause tried by jury a jury fee of $3 to be prepaid by the party calling for the jury ; and in ease of an application for appointment of a conservator, when a conservator is appointed, to be taxed against the estate of the person for whom the con- servator is appointed; and in case of a claim, the costs to be taxed against the unsuccessful party and collected as other taxed costs. For entering order, docketing, filing and issuing citation, $1. For issuing and filing subpoena, 25 cents. For issuing dedimus potestaem [potestatem], $1. For issuing, docketing and filing executions, $1. For proof of heirship, $1. For writ of attachment for contempt of court, $1. For every certificate under seal of court issued by clerk, ex- cept as herein otherwise provided, 50 cents. For discharge of executors, administrators, guardians, or con- servators, or any sureties on their bonds, $2.50. FEES OF CLERKS. 741 For entering any order not herein otherwise provided for, 75 cents. For issuing summons and filing same, 75 cents. For administering each oath, 15 cents. For recording all papers, instruments, documents and writ- ings required by law or order of court to be recorded, for each one hundred words, 15 cents. On application for the grant of letters testamentary, of ad- ministration, guardianship or conservatorshipj it shall be the duty of the applicant to state in his or her petition the value of all the real and personal estate of such deceased person, infant, idiot, insane person, lunatic, distracted person, drunkard or spendthrift, as the case may be, and on the grant of letters testamentary, administration, guardianship or conservatorship, there shall be paid to the clerk of said Probate Court, from the proper estate, and charged as costs a docket fee as follows: When the estate does not exceed $5,000, $5. And the sum [of] one (1) dollar for each and every addi- tional $1,000 of the estate of such deceased person, infant, idiot, insane person, lunatic, distracted person, drunkard or spend- thrift, as the case may be. In all cases where any deceased person shall leave him or her surviving a widow or children resident of this State, who are entitled out of said estate to a widow's or child's award, and the entire estate real and personal of such deceased person shall not exceed $2,000, and in the case of any minor whose estate real and personal does not exceed the sum of $1,000, and whose father is dead, and in all cases of any idiot, insane person, lunatic, or distracted person, drunkard or spendthrift, when such person has a wife or infant child dependent on such per- son for support, and the entire estate of such person shall not exceed the sum of $2,000, the probate judge (by order of court) shall remit and release to such festate all of the costs herein provided for. In all estates not exceeding $500 in value, the judge of the Probate Court may in his discretion suspend, modify or remit the costs by order of court duly made. As amended by act t42 THE LAW OF ESTATES. approved June 19, 1891. In force July 1, 1891. L. 1891, p. 137; Legal. 840. Payment in advance. Section 2. The clerk of Probate Courts shall be entitled in all cases to demand and receive the payment of all fees for services in advance, so far as the same can be ascertained.^ 841. Repeal. Section 3. All acts or parts of acts in con- flict with this act are hereby repealed. [As amended by act ap- proved June 19, 1891. In force July 1, 1891. L. 1891, p. 39.] 842. That portion of the act, concerning docket fee, recently held to be unconstitutional, and an attempt to impose a burden upon estates in the nature of a tax for the purpose of raising revenue for public purposes. The act relating to fees including a doclvet fee provided for has been strenuously enforced in Cook county at least ever since its enactment in 1879. Many hun- dred thousand dollars has been exacted and paid as a docket fee from deceased persons' estates, and from the estates of infants, idiots, lunatics, distracted persons, drunkards and spendthrifts, through their legal representatives, such as execu- tors, administrators, guardians and conservators. This vast sum of money so collected imposed as a burden upon estates in the nature of a tax, is supposed to have found its way into the county treasury and used for public purposes. In October, 1906, the Supreme Court of Illinois, having this question of docket fees squarely before them in the case of Cook County v. Fairhank, et al.,^ it was held: The provisions of the Act of 1879 entitling Probate Courts of the third class to a graduated docket fee, based upon the value of the estate upon which application is made for letters testamentary or of administration, guardian- ship or conservatorship, is unconstitutional, as being an attempt to impose a burden upon estates, in the nature of a tax, for the 2 — Hamilton v. People, 61 111. case cited in note, and it was App. 94. Section 2 of Act in ques- held fees should not be demanded tion providing for payment of fees or paid in advance. in advance was passed upon in 3 — 222 111. 578. FEES OF CLERKS. 743 purpose of raising revenue for public purposes. The law ap- plied in the Illinois case has also been ai)plied in other States.* 843. Fees of clerks of county courts in probate matters. Sec- tion 3. For taking proof of last will and testament, or codicil, when proved separately, and indorsing certificate of probate thereon, including all services relating thereto, thirty-five cents. For entering order admitting to probate last will and testa- ment, or codicil, twenty cents. For recording last will and testament, or codicil, for every one hundred words, eight cents. For taking bond of executor, administrator, guardian or con- servator, administering oath and recording bond, fifty cents. For issuing and sealing letters testamentary, letters of admin- istration, appointment of guardian or conservator, and record- ing the same, seventy-five cents. For entering order for appointment of appraisers, twenty cents. For issuing warrant to appraisers, fifty cents. For taking and filing renunciation of widow or next of kin, five cents. For entering each judgment, order or decree, or settlement of executor, administrator, guardian or conservator, for every one hundred words, eight cents. For filing and docketing claims against estates, ten cents. For entering orders allowing claims against estates, counting the whole entry as one, twenty cents: Provided, no charge shall be made for allowing claims against estates, except for swearing to and filing affidavits, unless the claim is litigated as other suits. For filing inventories, appraisement bills, sale bills, and all 4 — State V. Mann, 76 Wis. 469; courts in construing statutes as- State V. Gorman, 40 Minn. 232; sume that they were enacted by Fatjo V. Pfister, 117 Cal. 83; In re the legislature with a view to the Cope's Estate, 191 Pa. St 1; see settled maxims and principles of also People v. Hinrichson, 161 111. statutory interpretation. That 223. In this case it is held: The case, in the Fairbanks case, being explained and distinguished. 744 THE LAW OF ESTATES. other exhibits and writings (except wills and codicils), five cents. For entering order approving the same, twenty cents. For recording inventories, appraisement bills, sale bills, and all other exhibits and writings (except wills and codicils), for every one hundred words, eight cents. For entering order approving widow's award, twenty cents. For certified copies and exemplifications of records, papers and settlements, for every hundred words, eight cents. For certified copies, with seal of court, of letters of adminis- tration or testamentary, or guardianship or conservatorship, fifty cents. For petition, order, and issuing citation, forty-five cents. For entering order approving account of executor, adminis- trator, guardian or conservator, twenty cents. For recording such accounts, for every one hundred words, eight cents. For entering order approving reports of executor, adminis- trator, guardian or conservator, twenty cents. For entering order discharging executor, administrator, guar- dian or conservator, twenty cents. For keeping a regular account current with executor, admin- istrator, guardian or conservator^ to be kept in a well bound book, and preserved, on each settlement, fifty cents. For filing petition, and issuing summons in application to sell real estate, twenty-five cents. For entering order for same, twenty-five cents. For entering order appointing guardian ad litem, twenty cents. For dedimus to prove will, or otherwise, fifty cents. ^ 844. Remission of fees in county and probate courts in coun- ties of first and second class. An act, approved June 18, 1891. In force July 1, 1891. Laws of 1891, p. 136. Amended June 5— Par. 55, section 3, chapter linois, Vol. 2, pp. 1934, 1935, 1936; 53, "Fees and Salaries." Starr & Kurd's R. S. of 111., 1905, pp. 1072, Curtis Annotated Statutes of II- 1073. FEES OF CLERKS. 745 21, 1895. In force July 1, 1895. Laws of 1895, p. 175. Sec- tion 1. In all cases where by the death of any person there shall be left, surviving such person, a widow or children resi- dent of this State who are entitled out of said estate to a widow's or children's award, and the entire estate of such deceased person shall not exceed one thousand (1,000) dollars, and in case of any minor whose estate does not exceed the sum of five hundred (500) dollars, and whose father is dead, and in all cases of any idiot, insane person, lunatic or distracted person, drunkard or spendthrift, when such person has a wife or infant child dependent on such person for support, and the entire estate of such person shall not exceed the sum of one thousand (1,000) dollars, and in cases of the adoption of chil- dren wherein it shall appear to the court that the child adopted is under the age of fourteen years, and that his or her estate does not exceed in value the siun of five hundred (500) dollars, the court shall make an order, and cause the same to be entered of record, releasing and remitting all the fees of the clerk and other officers of the court.® 845. RepeaL Section 2. All acts or parts of acts in conflict with this act are hereby repealed. RECORD ON APPEAL AND ERROR. An act concerning fees and costs. [Approved June 15, 1887. In force July 1, 1887. L. 1887, p. 182.] 846. Record in case of appeal or writ of error, fee to clerk and costs to party. Section 1. Be it enacted by the People of the State of Illinois, represented in the General Assernbly, That whenever any party to any suit or proceeding in any court of record in this State, desires to take an appeal or prosecute a writ of error from any judgment, or decree of such court, ren- dered in any such suit or proceeding, to the Appellate or Su- preme Court, and shall present to the clerk of such court, where 6— Kurd's R. S. of 111., 1905, pp. 1076, 1077. 746 THE LAW OF ESTATES. such judgment or decree was rendered, a fair copy of the bill of exceptions, or certificate of evidence, or other papers not of record in such cause, necessary to be transcribed, the clerk shall, in making up the transcript of the record for such appeal or writ of error, be allowed three cents for each one hundred words, for comparing such copies with the originals, or with the record thereof, and for correcting any errors in the same: Provided, that in no case shall the fee for such services be less than one dollar ; and he shall insert such copy in the record and certify the same as a part thereof. And in counties of the sec- ond and third class, the party furnishing such transcript, and who shall be successful on such appeal or writ of error, shall re- cover as costs against the unsuccessful party not furnishing such transcript, ten cents for each one hundred words thereof, to- gether with such other costs as may be allowed by law: Pro- vided, that the parties to such appeal or writ of error, may by agreement, have the original bill of exceptions, or certificate of evidence, instead of a copy incorporated in such transcript of the record, without paying, or being liable to pay any fees or costs therefor.'^ 847. Per diem to clerks of circuit and probate courts in counties of second class. An act to amend an act entitled "An act to allow a per diem fee to clerks of the Circuit and Probate Courts in counties of the second class," approved June 15, 1893, in force July 1, 1893. [Approved June 7, 1895. In force July 1, 1895. L. 1895, p. 175.] Per diem fee to clerks of Circuit and Probate Courts in counties of first and second class. An act to amend an act entitled, "An act to allow a per diem fee to clerks of the cir- cuit and Probate Courts in counties of the first and second class," approved June 7, 1895, in force July 1, 1895. [Ap- proved May 10, 1901. In force July 1, 1901. L. 1901, p. 208.] 847a. Clerks allov/ed per diem fee. Section 1. Be it enacted hy the People of the State of Illinois represented in the Gen- 7— Starr & Curtis Annotated 1941; Kurd's R. S. of 111., 1905, Statutes of Illinois, Vol. 2, p. pp. 1076, 1077. FEES OF CLERKS. 747 eral Assembly: That an act to amend an act entitled, "An act to allow a per diem fee to clerks of the Circuit and Probate Courts in counties of the first and second class," be amended to read as follows: The clerks of the Circuit Court in counties of the second class shall receive and be allowed as a per diem fee for attendance upon said courts the sum of six dollars per day ; and the clerks of the Probate Court in counties of the second class, and clerks of the Circuit Court in counties of the first class shall be allowed the same per diem fee for attendance upon their respective courts as are now allowed to clerks of the county court and sheriffs in counties of the second class for such service.^ / 8— See L. & N. R. R. Co. v. East R. S. of 111., 1905, p. 1077, and St. Louis, 134 III. 661; Callon v. note by editor. Query, is it valid? Jacksonville, 147 III. 114; Hu'rd's Z^^L^^LC^ ^^^^^...-^^ wt^t™, ^^ LIBRARY IWIVERSITY ©F CALIFORNU U)BAN6BLES UC SOUTHERN REGIONAL LIBRARY FACILITY AA 000 858 153 o li M