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cago, and notwithstanding the fact the said city of Chicago was the party seeking the recovery of the tax (the treasurer being but an instrument of the law charged with the duty of selling the land in pursuance of a judgment), the city of Chicago was not made a party defendant to the bill. The city is a necessary party to the proceeding, and the only party beneficially interested, as defendant, thereto. It should have been made party defendant. High, Inj. §§ 576, 1191, 1552. The issues sought to be raised and determined did not affect the appellee in his official capacity or as an individual, and the only necessity for his presence in the case grew out of the desire of complainants that the sale of the land should be stayed pending the litigation between the city and the complainants. The injunction was but incidental to the proper purposes of the bill, and therefore should not have been granted on a bill so framed as to leave out of the case the real party to the controversy, and to bring in as the only defendant another whose presence was only necessary to preserve the status quo until the issues to be raised under the bill between the complainants and the real defendant could be heard and determined by the court. It is not the proper practice, however, to dismiss a bill in chancery, on motion, for want of proper parties. Thomas v. Adams, 30 Ill. 37. In such a case leave should be given to amend, and bring before the court all who are necessary to the proper disposition of the cause. Yet, as we have before remarked, an injunction should not have been granted on the bill in the case at bar, the city not being made defendant. The circuit court treated the motion to dissolve as a demurrer to the bill, and dissolved the injunction and dismissed the bill. This is correct practice, if there is want of equity in the bill. The circuit court held the bill did not disclose grounds for the relief prayed, and in this view we concur. The decree is affirmed. Decree affirmed.

SONDHEIMER et al. v. GRAESER et al. (Supreme Court of Illinois. April 21, 1898.) CHATTEL MORTGAGES-POSSESSION-PURCHASER.

A firm gave a chattel mortgage, and before the maturity of the debt sold the property to G. Co.

E. & Co. owned the stock in G. Co., and furnished money to be used in its business, for which G. Co. afterwards confessed judgment in favor of E. & Co., and the property was seized under execution. Held, that E. & Co. were the real parties in interest in G. Co., and had only such rights in the property as were acquired by G. Co.; and that since G. Co., who purchased the property before the maturity of the mortgage debt, could not contest the validity of the mortgage on the ground that the mortgagee did not take possession when his debt matured, E. & Co. could not attack the mortgage on that ground.

Appeal from appellate court, First district. Suit by Emanuel Sondheimer and others against Joseph Graeser and others. Judg

ment for defendants, and plaintiffs appealed. Affirmed.

The following is the statement of the case made by the appellate court:

"William D. Gibson filed a bill in equity in the circuit court of Cook county, making the Gassmann Parlor-Frame Company, Catharine Gassmann, William Gassmann, Fred C. Mueller, George Lesprance, Henry Sondheimer, and Max Sondheimer defendants, alleging, among other things, that the Gassmann Parlor-Frame Company was indebted to the complainant in the sum of $103.66, and was also largely indebted to laborers and others, and that in September, 1895, when it was insolvent, it fraudulently executed a judgment note for a large amount, and assigned its book accounts to E. Sondheimer & Co., etc. The prayer of the bill was for a dissolution of the corporation and for a receiver, etc. The other parties to this bill, who were not originally made defendants to the bill, were subsequently made parties, and presented their claims by appropriate pleadings.

"The record discloses the following facts: Prior to the organization of the Gassmann Parlor-Frame Company as a corporation, the Gassmanns were manufacturing frames under the firm name of Gassmann, Trumper & Co. June 22, 1894, Catharine Gassmann, who seems to have been the owner of the property, executed to the order of Rees Bros. four promissory notes, one for the principal sum of $2,055, due on or before July 1, 1895, and three for the sum of $200 each, and due, respectively, on the first days of July, August, and September, 1894, and to secure the payment of said notes executed a chattel mortgage for the machinery, fixtures, etc., in the manufacturing plant of the Gassmanns. Rees Bros. assigned the notes and mortgage to James W. Garvy, and Joseph Graeser, one of the appellees, subsequently became the owner of the notes and mortgage by assignment from William J. Garvy, administrator of the estate of James W. Garvy.

"After the execution of the notes and mortgage, on July 6, 1894, the Gassmann ParlorFrame Company was organized, and the plant of the Gassmanns, including the mortgaged property, was transferred to the new corporation. The board of directors of the Gassmann Parlor-Frame Company was composed of its officers, viz.: William Gassmann, president; Max Sondheimer, treasurer; and Henry Sondheimer, secretary. Max Sondheimer, the treasurer, and Henry Sondheimer, the secretary, were sons of Emanuel Sondheimer, and Max was also a member of the firm of E. Sondheimer & Co., the other members of that firm being Emanuel Sondheimer and Moses Katz. The stock of the Gassmann Parlor-Frame Company was divided into fifty shares, of the par value of $100 each, of which Henry Sondheimer held twenty-four shares and Max Sondheimer one share. That these twenty-five shares were, in fact, the

property of Emanuel Sondheimer & Co. is evident from the testimony of Max Sondheimer. He says the firm of E. Sondheimer Co. furnished the Gassmann Parlor-Frame Company lumber and all the money the company needed to do business; that they, E. Sondheimer Co., backed the parlor-frame company, and in consideration of that the twenty-five shares of stock were given them. He also says that he went into the directory because the firm of E. Sondheimer & Co. had sold the parlor-frame company all the lumber it used, paid its notes, and carried on its business, and that the parlor-frame company was insolvent when he and Henry went into the directory. Henry Sondheimer testified that he had knowledge of most of the affairs of the parlor-frame company as to its financial condition and standing, and that the business of that company was conducted with the money of E. Sondheimer & Co.

"September 16, 1897, the Gassmann ParlorFrame Company being then insolvent and indebted to E. Sondheimer & Co. to the amount of about $3,386.45, William Gassmann, the president of the company, being thereunto authorized by the company's board of directors, executed a judgment note to E. Sondheimer & Co. for the sum of $3,128.88. Max Sondheimer explains the discrepancy between the amount due and the amount evidenced by the note by saying that there were some items which, at the date of the note, had not been charged up in the ledger of E. Sondheimer & Co. Also, on September 16, 1895, the secretary of the Gassmann ParlorFrame Company, acting in pursuance of a resolution of the board of directors of said date, assigned to E. Sondheimer & Co. all the outstanding accounts and debts due to the Gassmann Company as further security for the indebtedness to E. Sondheimer & Co. The resolutions of the board of directors authorizing the execution of the judgment note and the assignment of the accounts were passed by the votes of William Gassmann, president, and Henry Sondheimer, secretary, Max Sondheimer being present but not voting. Max at first voted in favor of assigning the accounts, but subsequently withdrew his vote.

"September 17, 1895, E. Sondheimer & Co. caused judgment to be entered in the superior court of Cook county on the judgment note above mentioned, sued out an execution on the judgment, and caused the same to be levied upon the property of the Gassmann Parlor-Frame Company, including the property described in the chattel mortgage assigned to Joseph Graeser, which property so levied on the sheriff took possession of and appointed Henry Sondheimer as custodian thereof. While these proceedings were in progress, a bill was pending in the superior court, filed by William Garvy, administrator of the estate of James W. Garvy, deceased, for the foreclosure of the chattel mortgage in question, in which E. Sondheimer & Co. in

tervened, and. subsequently to the taking possession of the property levied on by the sheriff, Emanuel Sondheimer was appointed receiver in that suit, and by order of the court the sheriff turned over the property to him. September 27, 1895, the suit was dismissed, and the receiver in that suit then turned over the property to the receiver appointed by the circuit court in the present case. All of the property was sold by order of the court, and the proceeds of the sale, together with a small sum of money in the hands of the receiver, amounted to the sum of $2,231.91. The court found that certain claims of laborers, amounting to the sum of $666.78, were a first lien on the fund; that this chattel mortgage of appellee Graeser was a second lien to the amount of $2,400; and decreed that, after paying said amounts, the receiver should pay from any funds in his hands the claim of E. Sondheimer & Co. The appellants assign as error the finding of the circuit court that the chattel mortgage owned by appellee Graeser was a valid lien, and giving it priority to the claim of appellants."

Blum & Blum, for appellants. Bulkley, Gray & More, for appellees.

WILKIN, J. (after stating the facts). The only question in this case is whether the chattel mortgage under which appellees claim is valid, and it is questioned upon no other ground than that the holder of it failed to take possession of the property at the maturity of the secured debt. It has been often held by this court that, as between the mortgagee of chattel property and bona fide purchasers after maturity, or creditors, the mortgagee must take possession within a reasonable time after default. The rule, however, has no application between the mortgagee and mortgagor, or a purchaser from the latter before maturity. Arnold v. Stock, 81 Ill. 407; Sumner v. McKee, 89 Ill. 127. It cannot be seriously contended that, in view of these latter authorities, the parlor-frame company could be heard to deny the validity of the mortgage in question, as against it, because of a failure on the part of the mortgagee to seize the property upon maturity of the last note falling due. It certainly occupied no better position in that regard than did the mortgagor to whose rights it succeeded before maturity and merely by its corporate organization. As to it the case is, on principle, not unlike Sumner v. McKee, supra.

The appellate court, after the foregoing careful statements of the facts and circumstances of the case, say: "In view of these facts, it may well be said that appellants were, for all practical purposes, the Gassmann Parlor-Frame Company, and so stood in no different relation to the mortgagee than did that company." We think this conclusion is fully maintained by the evidence.

The reason upon which the rule announced

in Reed v. Eames, 19 Ill. 596, and later cases, is based, does not apply as between these parties. We think the appellate court prop erly sustained the validity of the mortgage, for the reason that appellants, in fact, occupy the same position as that of a mortgagor or one purchasing from him before maturity. The fact that E. Sondheimer aided the parlor-frame company in its effort to prevent a foreclosure of the mortgage upon maturity of the first two notes, as stated in the opinion of the appellate court, at least strengthens the view that appellants were the real parties in interest, and in no proper sense innocent third parties. We think the appellate court also properly disposed of the cross errors assigned by appellees. Judgment affirmed.

MINKLER et al. v. SIMONS et al. (Supreme Court of Illinois. April 21, 1898.) WILLS-BILLS FOR CONSTRUCTION-EQUITY JURIS

DICTION-INTESTACY.

1. Where a will provides for the sale of real property by the executor, and the distribution of the proceeds in a mode prescribed, a trust is thereby created; and hence equity has jurisdiction of a bill by a cestui que trust to construe the will, and to enforce the trust as therein provided.

2. A court of equity will, when there is a controversy as to the construction of a will and the enforcement of a trust therein, assume jurisdiction, as against the county court, to determine the rights involved, the settlement of the estate to proceed thereafter in the county court.

3. Testator devised real estate to be sold, and the proceeds divided among his three children. By codicil, he revoked so much of it as applied to his son, and bequeathed him $1,200, but did not make any express disposition of the one-third share previously devised to the son. Held a disposition of such share to the extent of $1,200, the rest thereof being intestate property, and the other shares being unaffected by the codicil. Appeal from appellate court, Second district.

Bill by Thomas E. Minkler and another against John R. Simons, administrator, and others. A decree dismissing the bill was affirmed by the appellate court (71 Ill. App. 462), and complainants appeal. Reversed.

A. M. Beaupre and C. I. McNett, for appellants. Samuel J. Lumbard, for appellees John R. Simons and Susanna Simons. J. Ivor Montgomery and P. G. Hawley, for other appellees.

CRAIG, J. This was a bill in equity brought by the appellants, for the purpose, as claimed in the argument, of obtaining a construction of the will of Smith G. Minkler, deceased, and also to compel a sale of the lands devised by the will, and a division of the proceeds. A hearing was had on the bill and answer, no evidence having been introduced except the will; and, on the hearing, the court entered a decree dismissing the bill. On appeal to the appellate court, the decree was affirmed.

It appears from the bill and answer that Smith G. Minkler died testate on the 3d day of June, 1895, leaving a widow, Sarah Ann Minkler, and three children, Thomas E. Minkler (the complainant) and Susanna Simons and Florence C. Andrews. The testator, at the time of his death, owned a farm in Kendall county, consisting of 191 acres. The first clause of the will names the execu. tor. In the second clause the testator devises all his personal property to his wife. In the third clause the testator gives his wife the income of his real estate during her life, and following the bequest for life is this provision: "And, after her death the same shall go to and be divided among my following named children, equally, share and share alike, to wit, Susanna Simons, wife of John Simons, Thomas E. Minkler and Florence Minkler, to have and to hold the same to them and each of them, their heirs and assigns, forever." The fourth clause of the will authorizes the executor to sell the real estate before the death of the wife, if she thinks best, and contains this provision: "And in case my said real estate, or any part thereof, shall not be sold before the death of my said wife, I do hereby confer the same power of sale upon the surviving executor, or administrator with the will annexed, as the case may be, and with the direction that he shall, as soon as may be consistent with the interest of my said estate, sell all my remaining real estate, and divide the proceeds of such sale, after paying expenses thereof, equally between my said children, share and share alike, taking into consideration any advancements that may have been made to them, or either of them, as aforesaid." The tes tator, after the execution of the will, added a codicil thereto, as follows: "Now, therefore, I do revoke and declare null and void so much of my last will and testament, and the conditions of the same, as relates to my son, Thomas E. Minkler. It is now my will and desire, after my decease and final settlement of my estate, that the said Thomas E. Minkler shall receive ($1,200) twelve hundred dollars." The will and codicil were probated in the county court of Kendall county on June 19, 1895. The widow died November 7, 1895. No part of the land was sold in her lifetime, and no part of the land has been sold since her death. The bill prays "that said John R. Simons, administrator with the will annexed of the estate of Smith G. Minkler, deceased, may be decreed by the court to sell said premises in the manner in said will provided, within a short day to be fixed by the court, and divide the proceeds of said sale, after deducting the expense thereof, among the parties entitled thereto, viz. that he first pay to complainant, Thomas E. Minkler, the sum of $1,200, and that he divide the balance as follows, viz. that he pay to complainant, Thomas E. Minkler, one-ninth part thereof, that he pay to said Florence C. Andrews four-ninth parts

thereof, and that he pay to Susanna Simons four-ninth parts thereof."

It is first contended that legal rights only are involved, and a court of equity had no jurisdiction to construe the will. We think the law is well settled, where no trust is created neither the heir nor the devisee who claims only a legal title in the estate will be permitted to come into a court of equity for the purpose of obtaining a judicial construction of the provisions of the will. In other words, where only purely legal titles are involved, and no other relief is asked, equity will not assume jurisdiction to declare such legal titles, but will remit the parties to their remedies at law, as declared in Strubher v. Belsey, 79 Ill. 308, and cases there cited. The same doctrine is declared in Whitman v. Fisher, 74 Ill. 148. Where, however, a trust is involved, a different rule prevails. If a trust is reposed in the executors, the aid of a court of equity may be invoked to direct the management or execution of the trust. Whitman v. Fisher, supra; 1 Redf. Wills, 438; Bowers v. Smith, 10 Paige, 193; 3 Pom. Eq. Jur. § 1156. Here the executors were clothed with power to sell the real estate belonging to the testator at the time of his death, and, upon making sale, distribute the proceeds in the mode pointed out in the will, different from the disposition provided by the statute of descents. A trust was therefore created, and any one included in the distribution of the trust property had the right to invoke the aid of a court of equity to obtain a construction of the will, and enforce the trust as provided therein.

It is, however, said the question involved is one purely for the county court, where letters were granted to settle the estate. We recognize the doctrine, to its fullest extent that courts of equity will not, except in extraordinary cases, supersede probate courts in the administration of estates. But this bill was not filed for the purpose of having a court of equity assume jurisdiction over the settlement of the estate of Smith G. Minkler, deceased, and Crain v. Kennedy, 85 Ill. 340, and other like cases, have no bearing on this case. Here was a controversy in regard to the construction of a will and the distribution of trust funds in the hands of the administrator with the will annexed, and a proper disposition of the case will not take the estate out of the hands of the county court; but when the will is construed, and the rights of the parties determined, the settlement of the estate can proceed in the county court.

We now come to the main question in in controversy between the parties, and that is whether the testator, by his will and codicil, disposed of all of his estate, or only a part. It is contended, on the one hand, that the testator intended to, and did, dispose of his entire estate; while, on the other hand, it is claimed that one-third of the 50 N.E.-12

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a person makes a will, it will be presumed that he intended to dispose of his entire estate, and the instrument will be so construed unless such presumption is clearly rebutted by its provisions, or there is evidence to the contrary. Hayward v. Loper, 147 Ill. 41, 35 N. E. 225. Indeed, courts will adopt any reasonable construction of a will consistent with its terms, so as to give it effect to dispose of the testator's entire property, rather than to hold an intention on the part of the testator to die testate as to a portion of his property, and intestate as to another portion. Scofield v. Olcott, 120 Ill. 363, 11 N. E. 351. The original will was executed on the 25th day of May, 1875, and under the second clause all the personal property was devised to the wife of the testator. As there was no change made in this provision by the codicil, there is therefore no question in regard to the personal property. Under the original will, as has been seen, the real estate, after the death of the wife, was to be sold, and the proceeds divided equally among the three children, Susanna Simons, Thomas E. Minkler, and Florence Minkler, share and share alike. So far, therefore, as the original will is concerned, the testator left no intestate property, and the persons to whom the property was devised, and the manner of distribution, were made so plain by the will that there was no room for controversy. The testator, however, on the 18th, day of May, 1892, added a codicil to his will, in which he revoked the will in so far as any provision had been made for his son, Thomas E. Minkler, and in the codicil provided that, after the testator's decease, on final settlement of his estate, Thomas should receive $1,200. The codicil made no change in regard to the one-third of the property which had been devised to Susanna Simons, nor was any change made in regard to the onethird devised to Florence Minkler, but as to the other one-third which had been devised to Thomas no disposition was made. The testator merely revoked that part of the will in which the one-third was given to Thomas, but made no provision whatever where that one-third should go. No doubt, the fact that the testator made no provision for the disposition of that one-third was an oversight of the person who drafted the codicil, but the court has no power to remedy the difficulty.

The question then to be determined is, what becomes of the one-third devised originally to the testator's son, Thomas? The will and codicil make no provision whatever for its distribution. Neither the will nor the codicil contains a single word on the subject. There is therefore nothing to warrant a presumption of an intention on the part of the testator to make a disposition of the revoked share of the estate, except as to the sum of $1,200. However reluctant courts may be to hold that a portion of the prop

erty of a testator shall be regarded as intestate property, they cannot do otherwise where, as in this case, there is nothing to show an intention on the part of the testator to dispose of the property. Where a testator devises to three of his children property as tenants in common, and subsequently revokes the devise as to one, and makes no disposition whatever of the share revoked, such share will not go to the other two, but it will descend as provided in the statute of descents. Ramsay v. Shelmerdine, L. R. 1 Eq. 129; Cummings v. Bramhall, 120 Mass. 552; Creswell v. Cheslyn, 2 Eden, 123; Mason's Ex'rs v. Trustees of M. E. Church, 27 N. J. Eq. 47; Floyd v. Barker, 1 Paige, 480. It will be remembered that the testator, in the codicil, did not attempt to change or modify, in any manner whatever, the bequests made to the two daughters, Susanna Simons and Florence Minkler. They therefore each take one-third of the proceeds of the real estate after deducting the expenses, as declared in the fourth clause of the will. As to the other one-third, $1,200 of that is devised to Thomas E. Minkler, and the remainder, whatever it may be, is intestate property, and will descend to the three children of the testator, each taking one-third thereof. The judgment of the appellate and circuit courts will be reversed, and the cause will be remanded to the circuit court, with directions to enter a decree in conformity to the views herein expressed. Reversed and remanded.

HARTFORD DEPOSIT CO. v. SOLLITT. (Supreme Court of Illinois. April 21, 1898.) CARRIERS-PASSENGER ON ELEVATOR - PERSONAL INJURIES-INSTRUCTIONS-EVIDENCE.

1. In an action for personal injuries sustained while on a passenger elevator, the first count of the declaration alleged that, through the negligence of defendant and his servants, the elevator fell from the eighth to the ground floor. The second count charged that defendant did not use proper care that the plaintiff should be safely carried, and did not have all the most improved proper appliances, and did not have said appliances in good order for performing their work. The evidence showed that the elevator fell from the eighth to the ground floor, the injury sustained by plaintiff, and tended to show that the elevator was overcrowded. No evidence was introduced by plaintiff as to the appliances by which the elevator was operated, but defendant introduced such evidence. The accident was caused by the bursting of a water pipe which controlled the elevator's speed. Held, that an instruction directing the jury to find for plaintiff if the elevator, owing to its negligent and faulty construction, or to the negligence or carelessness on the part of the servants in operating the same, fell and caused plaintiff's injuries, was proper.

2. Questions of fact raised by the refusal to give an instruction will not be considered where such instruction is one of a series.

3. In an action to recover for personal injuries received while in defendant's elevator, where the only question of negligence upon which plaintiff was entitled to recover was defendant's negligence in the operation, and failure to have the most improved safety appliances, or to keep them

in good working order, evidence as to the carrying power of the car was properly excluded.

4. Evidence as to the operation of other elevators is properly excluded in an action for injuries sustained while a passenger on an ele

vator.

Appeal from appellate court, First district. Action by Oliver Sollitt against the Hartford Deposit Company for personal injuries sustained through defendant's negligence. From a judgment of the appellate court (70 Ill. App. 166) affirming a judgment for plaintiff, defendant appeals. Affirmed.

Burnham & Baldwin, for appellant. Thomas Bates and Seymour Edgerton, for appellee.

PHILLIPS, C. J. Appellee leased offices on the tenth floor of a building owned by appellant at the corner of Dearborn and Madison streets, in the city of Chicago. On May 19, 1893, appellee took an elevator at the tenth floor for the purpose of descending to the first floor. On leaving the eighth floor with about twelve passengers, the car could not be controlled by the machinery, and it dropped rapidly from about the sixth floor to within four feet of the ground floor, when the further descent was arrested by the safety devices which clamped the guides on either side of the shaft. Appellee was injured by this fall, and brought suit in the circuit court of Cook county, where a verdict was returned for $4,000 damages, and a motion for new trial was made and denied, and judgment entered on the verdict. To the overruling of the motion for new trial, and the entering of judgment, the defendant excepted. An appeal was prosecuted to the appellate court for the First district, where that judgment was affirmed. The cause is brought to this court on appeal.

The first point made by the appellant is that an instruction given for the plaintiff was error, because it stated a proposition, under which a recovery could be had, which was not based on any matter charged by the declaration. Two counts were contained in the declaration. By the first count it was charged that, through the carelessness, negligence, and unskillfulness of the defendant and its servant, the elevator slipped in the shaft in which it ran, and fell from the eighth floor to the ground floor. The second count charged that the defendant did not use due and proper care that the plaintiff should be safely carried, and did not have all the most improved and proper appliances attached to prevent a too rapid fall of the elevator, and did not have said appliances in good and proper order and condition for performing their work. The only instruction asked by the plaintiff was: "The court instructs the jury that if they believe from the evidence in this case that the plaintiff, on or about the 19th day of May, 1893, was rightfully in an elevator in the possession of and operated by the defendant, and situated

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