force and effect unless the deed should be de- quent declarations of the maker as to the livered or put on record, and that in that kind of instrument he intended to make, event it should be canceled. What they said Bill disniissed, with costs. when they put the writing in Packard's hands was equivalent to a declaration that

(130 Ill. 334) they delivered it, not as a contract of sale of QUICK V. INDIANAPOLIS & ST. L. R. Co. real estate, but as a memorandum of their

(Supreme Court of Illinois. Oct. 31, 1889.) agreement in regard to the note so long as MASTER AND SERVANT – CONTRIBUTORY NEGLIthe note should be held under the arrangement.

In an action against a railroad company for We find nothing in these facts which con- injury to a car repairer, caused by moving the car tradicts or varies the terms of the writing. while he was repairing it, special findings to the When the facts appear, the writing is found car repairers, when working on cars standing on to be properly applicable to them. There can the main or side track, must give notice by placing be no doubt, when we look at the circum- a blue flag on the car, and that plaintiff did not give stances surrounding the transaction, that the such notice, do not justify a refusal to enter judg

ment on a general verdict for plaintiff where the deed referred to in the paper was that which evidence shows that the plaintiff was injured while Packard then held, and that the agreement the car was not on either the main or side track. should be construed as if the words "now in

Error to appellate court, third district. the hands of Rufus A. Packard” had been

Craig & Craig, for plaintiff in error. John inserted in it after the words “ warranty deed T. Dye, for defendant in error. of the mansion-house property.” It is argued that the deed which Packard held was not a PER CURIAM. Action on the case byplaintiff warranty deed, and so that the writing can- in error against defendant in error for a pernot be shown to have referred to that. We sonal injury, alleged to have resulted through think so much else appears to show what the negligence of its employes. On the trial deed was intended, that, even if the word the jury returned a general verdict for plain"warranty" gave an absolutely false descrip- tiff, and assessed his damages at $500. “Botha tion, in this part of the instrument, which is parties requested, and the trial court directed, a mere recital, it could be rejected. Clark v. the jury to find specially upon several quesHoughton, 12 Gray, 38; Johns v. Church, 12 tions of fact. Those submitted at the request Pick. 557. But, while it is inaccurate, it is of the defendant, and the finding of the jury not utterly false and misleading. The deed on the same, are as follows: Question. Did was in form a warranty deed, containing all the injury complained of in the declaration the covenants and provisions usually found result from moving up a car on a track in in such an instrument, although its legal ef- the yards of the defendant in attempting to fect was changed by an exception of the two attach a locomotive thereto while Quick was mortgages in one of the covenants, with a at work making repairs under the car? Anstatement that the grantees were to assume swer. Yes. Q. Were any flags displayed on and pay them. Such a deed is often spoken said car, or in front of the same, to warn the of as a warranty deed, inade subject to mort- engineer of the approaching train of the fact gages to be assumed. Upon the question that plaintiff was at work under said car? whether the oral testimony was competent, A. No. Q. Was any signal or warning of the case is not as if the evidence had made any kind given to the engineer of the apthe agreement contradictory and wholly in- proaching train of the fact that the plaintiff applicable to the facts as shown. It is al- was at work under said car? If so, what ways competent to show by parol whether signal or warning was given? A. No. Q. an instrument was delivered or not, and if Were there blue flags in the yard of said its terms are equally consistent with both it company wliere said accident occurred at the is competent to show either an absolute or a time Quick went under said car, provided for qualified delivery. So, if its language is ca- the express purpose of being used as signals pable of one kind of interpretation as applied of danger when car repairers or inspectors to one state of facts, and equally capable of a should be at work under cars? A. No. Q. different interpretation as applied to other At the time Quick went under said car to facts, it is always competent to show what work, did he know these blue flags were in were the farts in reference to which it was the yard ? A. Yes. Q. Did the rules of the made. We think the facts introduced in evi- defendant company provide that when makdence in this case were competent, and we ing repairs to cars standing on the main are clearly of opinion that the plaintiffs are track or side track they must protect theinnot entitled to a deed of the mansion-house selves by placing a blue signal in the drawproperty free from the mortgage incum- head or in the platform of the car at each brances upon it. The offer to prove by end of the train to prevent the cars from beCharlotte E. Adams what Peleg Adams said ing coupled to or moved while they are making to her at different times before and after repairs ? A. Yes. Q. Did the plaintiff, making the written agreement, in regard to Quick, at the time he went under the car behis purpose to give her a clear title to the fore the happening of the accident comproperty, was rightly rejected. It was plained of, display any blue flag or signal of merely an attempt to affect a written in- any kind to protect himself from danger of strument by introducing prior and subse- the car being coupled ɔnto or moved while lie

was under the car ? A. No. Q. Did he ask | erased at the time he received his injury. On for or inquire after the signal flags to get the contrary, defendant insisted that the blue them for his own protection? A. No.” On flag or signal was to be placed on all cars bemotion of the defendant judgment was en-ing repaired, wherever located; that it was tered for it on the special findings, not with the duty of the workmen engaged in repairstanding the general verdict. That judgmenting any car to put out such Aag or signal for was affirmed in the appellate court.

their own protection; and that engineers and The only controversy in this court is as to all other employes whose duty it was to move whether or not the special findings on the be- cars had a right to take ont all cars not dishalf of the defendant are so inconsistent with playing such flags or signals. On this issue the general verdict as to justify the judgment the company introduced in evidence this rule: rendered by the circuit court. It is insisted

It is insisteil | “Car inspectors will report to and receive on behalf of defendant in error that the spe- their instructions from the master mechanic, cial findings of the jury convict the plaintiff but will obey all orders of the superintendof such negligence on his own part as will bar ents or train-master, and report them as they his right of recovery, regardless of the negli- direct. * * * * They will make such regence of the employes of the defendant, and pairs as may be required, and send to the upon that theory the judgment of affirmance shops all those not fit for service. They in the appellate court is based. There is must give special attention to the passenger, nothing appearing on the face of the forego- baggage, mail, and express cars, and permit ing special findings to justify the claim that none to leave their stations that are not in the jury found the plaintiff guilty of negli- good running order. When making repairs gence. To warrant any such conclusion it to cars standing on main track or side track must be assumed that he was at the time of they must protect themselves by placing a the injury repairing a car “standing on the blue signal in the draw-head or on the platmain track or side track.” The evidence form or step of the car at each end of the clearly shows the contrary to be true. He train to prevent the cars from being coupled was employed by the company in its shops, to or moved while they are making repairs." in the city of Mattoon, as a carpenter, and it It seems too clear for argument that this rule was, among other things, his duty to assist cannot be applied to the car on which plainin the repair of cars at that place, under the tiff was working when injured. It applies directions of one Liechen, foreman of the car only to "cars standing on main track or side department. On the 7th of November, 1885, track.” This car was on neither, but in the a freight-car, loaded with stone, was placed repair yards. There is a manifest reason in the shop-yard for repairs, and plaintiff and why the rule should be made applicable to the a fellow workman were directed by Liechen one and not the other. It is insisted, howto repair it by putting in a pair of wheels. ever, that regardless of the applicability of While so engaged, being under the car, ån the printed rules the proof shows that by the engine backed into the yard, and in attempt instructions of his foreman and by the usual ing to couple onto the car caused the injury and recognized custom among the workmen sued for. There is no dispute as to the fact it was the duty of the plaintiff to have disthat the car was at this time in the repair played such signals, or to see that it was done. yard some distance north of the main track On this question of fact no opinion need be and switches. It appears from the evidence expressed; but, if it should be admitted, the that the manner of repairing cars at that concession would not help defendant's case place was, when the car inspector found a on this record. In that case, under the forcar disabled, and he could not repair it on the mer practice, it would have been the duty of track, or side track, he sent it to the shop or the trial court to set aside the general verdict yard, there to be repaired. Rule 198 of the as contrary to the evidence. Under the prescompany was introduced in the evidence, as ent statute, if the jury had found that it was follows: “Yard-masters must see that the his duty generally to have put up such sigyard is kept in good order; that the cars pass-nals, judgment might have been properly ing are properly inspected; and that all cars rendered for the defendant on such finding, requiring serious repairs are promptly sent notwithstanding the general verdict. But to the shops.” One of the strongly contested the jury made no such finding. What they questions of fact on the trial was whether or did find was that the rules of the defendant not it was made the duty of the plaintiff, by provided that when making repairs to cars the rules of the company or by instructions standing on the main or side tracks the workfrom his foreman, to put a blue flag or signal men must protect themselves by placing sigon the car being repaired to protect himself nals, etc. Each of the special findings in from danger while so engaged. The plain- this case may be true, and yet the plaintiff tiff contended that the rule was, when a car entirely free from negligence, for the simple was sent to the shops or repair yard, to put on reason he was not repairing a car on the main it the chalk-mark indicating the repair need- or side track. If the defendant desired a ed, which remained until the work on it was special finding of the jury on the question of completed, and then erased; that until the plaintiff's care or negligence, it should have chalk-mark was taken off the car could not submitted to them whether or not it was his be rightfully moved; and that the car in ques. duty to put out blue flags on that car, or tion had been so marked and the marks not whether or not the rules provided for putting

out such signals when making repairs at the his purchase? It is obvious that the rights place this car was standing, or on all cars be- of appellant are only those acquired by ing repaired. The circuit court erred in en. White under and by virtue of the assignee's tering judgment on the special findings, and deed of conveyance. The authority of the for that error the judgment of the appellate assignee to sell was the order of the bankcourt must be reversed. The cause will be rupt court of September 28, 1875. By that remanded to that court with directions to re-order he was directed to sell the assets, debts, verse the judgment of the circuit court, and and real and personal estate of the bankrupts, remand the cause to that court with direc- as in the assignee's “petition described and tions to it to entertain a motion for a new set forth.” In his petition the assignee had trial by defendant if one shall be made, and represented that Francis T. Sherman had if overruled, to enter judgment on the gen- scheduled, “as his personal property, a twoeral verdict.

ninths interest in the net income to be de

rived from the estate of F.C. Sherman, de(131 Ill. 115)

ceased, after the debts of the estate" were DE HAVEN V. SHERMAN et al.

paid; the nature of which interest was fully (Supreme Court of Illinois. Oct. 2, 1888.)

explained by the provisions of the will of F. Wills –ANNUITIES–RENT-CHARGE-BANKRUPTCY. C. Sherman, as copied in the petition. The

1. Testator devised property to M. and his suc-order of the court was as broad as the peticessors, in trust, for the lives of the testator's tion, but no broader. And, although in the wife and three children, and until the youngest child of any of the testator's children should attain the same petition the assignee asked “the court age of 21 years, when a conveyance was to be made to adjudge whether the said interest in the by the trustee to such grandchildren, and their said Sherman House property is in the natheirs. The property was to be held by the trustee entire, with power to lease, and, if necessary to ure of personal property, or of realty,” the repair or rebuild in case of destruction, to incum-court does not appear to have passed upon ber it. From the rents were to be paid expenses, the question thus submitted; so that, so far interest on incumbrances, taxes, insurance, etc., as we can see or know, the assignee was left

the each of his children; the excess to be applied in free to place his own construction upon the discharge of the debts. Held, that the trustee provisions of the will, and to determine for took an estate in fee.

himself whether, under the will, the bank2. As the devise to the testator's children was of a yearly sum, to be paid by the trustee out of rupt had, when his petition in bankruptcy the net rents of the realty in his possession, and was filed, an estate or interest in the two devised to him upon uses, it was merely an annui- Sherman House lots. It is apparent that the ty, and not a devise of rents issuing out of land, assignee determined that the bankrupt had which would call for the application of the rule that a devise of rents is a devise of the land itself. an interest in the realty; for he reported to

3. Nor was the annuity made a rent-charge up the bankrupt court that he did, at the time on the trust lands, as no power was given the an. and place of sale, after proper advertisement, nuitant to distrain in case the annuity was not offer “ for sale the interest of Francis T. paid.

4. A son of the testator made an assignment Sherman in the Sherman House property, in bankruptcy; and, by order of court, the as known,” etc., as the same is set forth and signee was directed to sell the assets, debts, and real and personal estate of the bankrupt, as de- appears by the will of Francis C. Sherman. scribed in his petition, which represented that the And it was this interest that was sold and bankrupt had scheduled, “as his personal proper-conveyed to the purchaser, and which was ty, a two-ninths interest in the net income to be afterwards acquired by the appellant, and derived from” testator's estate, as explained by which alone forms the basis for the relief his will, annexed to the petition. The petition asked the court to decide what interest or estate sought by her under her cross-bill. the bankrupt took under the will; but po decision It may, we think, be assimed, for the purwas made, and the assignee treated it in his advertisement as realty. Held, that, as the bankrupt poses of this case, that under the operation had no interest in the testator's estate, except an of the bankrupt law and the proceedings in annuity, which the assignee did not assume to sell, bankruptcy instituted by Francis T. Sherthe purchaser acquired no interest therein.

man, his estate, both real and personal, Appeal from circuit court, Cook county; legal and equitable, passed to and vested in JOHN C. BAGBY, Judge.

his assignee. Nor could the bankrupt, by Bill in equity by IIenry W. Leman against scheduling as personal property any interest Francis T. Sherman, Edwin Sherman, and Au- in real estate that may have been vested in gusta W. De Haven, and others, for the con- him by his father's will, thereby change its struction of the will of Francis C. Sherman. character, or defeat the transfer to his asAugusta W. De Haven filed a cross-bill, set- signee of that interest, whatever its charac. ing up a claim to the interest of Francis T. ter. It matters not what of the bankrupt's Sherman by virtue of a bankrupt's sale. estate the assignee may have acquired, nor From a decree dismissing the cross-bill for what of that estate he may have been authorwant of equity, Augusta W. De Haven ap- ized to sell, nor what of such estate he may peals.

have sold and conveyed, unless he acquired, Paddock & Aldis, for appellant.

appellant. Wilson was authorized to, and in fact did, sell and & Moore, for appellee.

convey the property rights and interests se

cured to his bankrupt under the will in the SHOPE, J. The first question for determi- net income arising out of the trust-estate denation here is, what did White, the purchas-vised to and vested in Joshua L. Marsh and er at the assignee's sale, take and acquire by his successors, in trust. And, if we further

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assume that Francis T. Sherman had, at the the fee-simple, or can be satisfied by any, and time he was adjudged a bankrupt, an estate what, less estate.” 2 Jarm. Wills, 305, 306, or interest in these lots, which passed to the and cases cited. The requirements and neassignee by virtue of the proceedings in bank- cessities of the trust here could be satisfied ruptcy, and, by the assignee's sale and con- with nothing less than the vesting of the fee veyance, to the purchaser, White, and that, in the trustee. One of the contingencies as to such estate, appellant has shown a clear provided for arose. The hotel building was. right and title, still, the substantial and con- destroyed by fire, and to rebuild necessitated trolling question, whether, under the will, the incumbering of the property bý mortgage Francis took an estate or interest in the real- to a large amount. This the trustee could ty, remains unsolved, and can only be deter- only do by being able to convey the fee. mined from a construction of the provisions And the final contingencies upon which the of the will itself. By the will, the Sherman trust should terminate were here certain to House property was devised to Joshua L. arise, when the trustee would be required, Marsh and his successors, in trust, for the in the execution of the trust, to convey to lives of the testator's wife and three children, the grandchildren of the testator the estate in and until the youngest child of any of the fee,—the same quantity of interest vested in testator's children should attain the age of him by the will. Both these exigencies of 21 years; when conveyance of the premises the trust appear on the face of the will; and was to be made by the trustee to such grand- it is clear that the trustee took the fee, now children and their heirs. During the con- holds it, and will continue to hold it until tinuance of the trust, the property was to be the termination of the trust in the manner held by the trustee entire. He was to lease and at the time fixed by the instrument deit. He might, if necessary to repair or re- claring the trust. This being so, it seems build in case of injury or destruction, incum- equally clear that Francis. T. Sherman did ber it. From the rents he was to pay inter- not take or acquire, under the will, any inest on incumbrances, taxes, insurance, re- terest in this property; the whole estate vestpairs, trust expenses. The expense of the ing in the trustee, upon uses and trusts, for care of testator's cemetery lot, not exceeding a term beyond the life of Francis. $250 a year, was made a charge on the rents; But it is insisted that, by the devise to and, until the incumbrances for improve- Francis T. Sherman of an annuity or yearly ment or repair or rebuilding should be paid, portion out of the net rents and profits of the the residue of the rents and profits were to trust-estate, he thereby acquired an interest be paid, $6,000 per annum, in monthly in- in the realty, and which interest has passed stallments, to the testator's widow, if living, to and is now vested in appellant. The genand $3,000 per annum, also in monthly in- eral doctrine undoubtedly is that a devise of stallments, to each of his three children, or the rents and profits of land is equivalent to the heirs of their body, and the excess to be a devise of the land itself, and will carry the applied on the indebtedness. But, when the legal as well as the beneficial interests thereindebtedness should be fully paid, the re-in. 2 Jarm. ills, 609. And we are cited to mainder of the rents and profits were to be the cases of Handberry v. Doolittle, 38 Ill. paid, in monthly installments, one-third 202, and Mather V. Mather, 103 111. 607, thereof to testator's widow, while living, and where this court has recognized and applied the two-thirds, in equal pirts, to his three the rule. But a brief analysis of those cases children, or the heirs of their body. The is all that is necessary, as it seems to us, to will took effect November 7, 1870.

show how clearly they are distinguishable Without stopping to determine fully the from the case at bar. In the Handberry Case relation the trustee sustained towards this the devise of one-fourth of the testator's estate property, it is to be observed that he took was to the children of his brother, Rawley, therein an estate in fee, lipon trusts deter- but with the provision that Rawley should minable upon the happening of the contin-“have uncontrolled and absolute managegenies named,—that is, the death of Electa ment and disposal of all such part of my esSherman, and of the three children of the tes- tate his said children at my decease shall betator, and the attaining the age of 21 years of come entitled to, until the youngest of said the youngest grandchild,-at which time he children shall become of full age, to use said was required, in further execution of the means at his discretion,” and without actrusts upon which he held the estate, to con- counting therefor; and, in the event of the vey the lands to the testator's grandchildren; death of Rawley's children, the same portion and the effect of such final conveyance would of his estate was bequeathed to another be, unquestionably, to vest the fee in such brother, Amaziah, “for the use of said Rawgrantees.

ley; the said Rawley, however, to have the The general principle which regulates the use and control of the same.” And it was quantity of estate is that the trustee takes there held that Rawley took an estate in the

exactly that quantity of interest which the land terminable on the coming of age of his purposes of the trust require;” and the ques- youngest child. “What is this,” the court tion, in every such case, is “whether the ex- asks, “but a devise to him of the property, to igencies of the trust, as they appear on the have and hold until the youngest child shall face of the will, without reference to events come of age?" and then answers the question subsequent to the testator's death, demand by saying that under a demise or conveyanca

by Rawley the lessee or grantee would take I was not made to rest alone upon such rule, and hold the premises, against the children, for the court adds: “It is clear this [a devise until the youngest became of age. Of the of the property to his widow and chiīdren for case at bar it must be said that there never their lives] was the intention of the testator; has been, since his father's death, and there and, without the aid of technical terms, apnever can be while he may live, a time when plicable to such matters, it is hardly possible Francis T. Sherman could or can, under this that intention could have been more certainly will, have asserted or assert over this Sherman expressed.” And so we now say. The deHouse property any right of possession, con- vise to one of the use and possession of real trol, or ownership, unless as the tenant of the estate passes an estate in the land. But how trustee. He is powerless, by virtue of the marked the distinction between that case and will, to personally use and occupy, to lease and the one at bar! Here, as we have seen, the collect and appropriate rents, or to convey any trustee took the fee, and will hold it, certainly interest therein which could be maintained until after the death of Francis T. Sherman against the trustee or his ultimate grantees. and Mrs. Marsh. The possession and use of “An interest in lands,” said this court in Jen- the hotel premises were especially vested in nings v. Smith, 29 Ill. 116, 121, "is mani- him. In the Mather Case, the rule of law festly something which may be enjoyed in was invoked to support the testator's intenconnection with the land itself.” In the tion, while here, if it is to be applied, the Handberry Case every element of ownership manifest intention of the testator would be was present; here, every element is wanting. defeated, the trust broken down, and the posIn the Mather Case the will provided, after session, management, and control of the the payment of debts, that the residue of Sherman House property pass into hands testator's estate should remain as his estate, other and different from those selected by the as long as he had a living child. The rents, testator. These cases, in our judgment, fall use, and interests of his estate were given, far short of sustaining appellant's contention. one-third of the net income to his widow dur But does this record present a case for the ing life, and the remaining two-thirds of the application of the doctrine that a devise of net income, during his widow's life, to his rents and profits is a devise of the land ? In children; after his widow's death, the whole other words, is there here a devise to Francis net income to his children, during their lives. T. Sherman of the rents and profits issuing The final distribution of the estate was post- out of lots 7 and 8, within the meaning of the poned to the time of the death of his last sur- rule? Rents are a species of incorporeal herviving child, when the estate was to be editaments. The word, from redditus, sigequaily divided between the testator's grand- nifies a compensation or return given for children. The will, it was contended, was the possession of some corporeal inheritance; invalid, because by its terms no title to the and it is defined to be a certain profit issuing property left by the testator was to pass to yearly out of lands or tenements corporeal. any one, so long as there was a living child, 2 Bl. Comm. 41. It must issue, not only out --only the net income being bequeathed to of some corporeal inheritance whereunto the his children during their lives,--and so there owner or grantee of the rent may have rewas no freehold to keep the seisin for the re- course to distrain, (Id.; 3 Kent, Comm. 460,) mainder-men. But the court held that the but out of the thing granted, and not be a devise of the net income of the estate to the part of the thing itself, (3 Greenl. Cruise, 70, testator's widow and children, during their 73.) The devise to Francis T. Sherman was lives was a devise of the property to them of a certain sum, during the life of his mother during their lives; that on the death of the and of himself, and subject to the uses and testator a particular estate vested in his child- exigencies of the trust in the same instruren, suflicient to support the remainder in the ment declared, payable yearly, arising out of grandchildren, and which particular estate rents. The rents themselves, as such, were prevented the estate devised to the grand devised to the trustee upon uses. children from vesting in possession at the that there was a devise of rents to Francis, testator's death. And thus after-born grand-carries with it, by necessary implication, the children were let in. There, as will be per- assumption that he was the owner of the ceived, while the period of distribution was rents, and could distrain therefor. It is not postponed until the death of the last surviv- contended that he possessed any such right; ing child of the testator,--not unlike the case nor did he. To hold that there was here a at bar,--and until final distribution, the wife devise of rents, would also require us to hold and children of the testator were given the that a rent could issue out of a rent; and this, net income of the estate, there was also, as a as has been ruled from the earliest time, cancloser inspection shows, by the express provis- not be. 1 Rolle, Abr. 227, paragraphs 1, 20. ions of the will, given to the wife and chil. As there said: If a rent of £20 be granted, to dren the “use and interest of my estate, both be paid out of customs assigned to the granreal and personal,” for the same period. The tor by the king, this cannot be a rent; for a widow and children clearly took, not only an rent does not issue out of a rent. In such interest and estate in the real estate, but the case, it shall be an annuity. The case put by right of possession. And, although the court Lord Chancellor HARDWICKE in Stafford v. invoked the rule of law that a devise of rents Buckley, 2 Ves. Sr. 177, namely, that King and profits will pass the land, the decision. Charles I. had granted the Barbadoes islands

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