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force and effect unless the deed should be delivered or put on record, and that in that event it should be canceled. What they said when they put the writing in Packard's hands was equivalent to a declaration that they delivered it, not as a contract of sale of real estate, but as a memorandum of their agreement in regard to the note so long as the note should be held under the arrangement.

quent declarations of the maker as to the kind of instrument he intended to make. Bill dismissed, with costs.

(130 III. 334)

QUICK V. INDIANAPOLIS & ST. L. R. Co. (Supreme Court of Illinois. Oct. 31, 1889.) MASTER AND SERVANT-CONTRIBUTORY NEGLI

GENCE.

In an action against a railroad company for injury to a car repairer, caused by moving the car effect that the rules of the company provided that while he was repairing it, special findings to the car repairers, when working on cars standing on the main or side track, must give notice by placing a blue flag on the car, and that plaintiff did not give such notice, do not justify a refusal to enter judgment on a general verdict for plaintiff where the evidence shows that the plaintiff was injured while the car was not on either the main or side track.

Error to appellate court, third district. Craig & Craig, for plaintiff in error. John T. Dye, for defendant in error.

We find nothing in these facts which contradicts or varies the terms of the writing. When the facts appear, the writing is found to be properly applicable to them. There can be no doubt, when we look at the circumstances surrounding the transaction, that the deed referred to in the paper was that which Packard then held, and that the agreement should be construed as if the words "now in the hands of Rufus A. Packard" had been inserted in it after the words "warranty deed of the mansion-house property." It is argued that the deed which Packard held was not a PER CURIAM. Action on the case by plaintiff 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. Both 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, made 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 always competent to show by parol whether an instrument was delivered or not, and if its terms are equally consistent with both it is competent to show either an absolute or a qualified delivery. So, if its language is capable of one kind of interpretation as applied to one state of facts, and equally capable of a different interpretation as applied to other facts, it is always competent to show what were the facts in reference to which it was made. We think the facts introduced in evidence in this case were competent, and we are clearly of opinion that the plaintiffs are not entitled to a deed of the mansion-house property free from the mortgage incumbrances upon it. The offer to prove by Charlotte E. Adams what Peleg Adams said to her at different times before and after making the written agreement, in regard to his purpose to give her a clear title to the property, was rightly rejected. It was merely an attempt to affect a written instrument by introducing prior and subse

was at work under said car? If so, what signal or warning was given? A. No. Q. Were there blue flags in the yard of said company where said accident occurred at the time Quick went under said car, provided for the express purpose of being used as signals of danger when car repairers or inspectors should be at work under cars? A. No. Q. At the time Quick went under said car to work, did he know these blue flags were in the yard? A. Yes. Q. Did the rules of the defendant company provide that when making repairs to cars standing on the main track or side track they must protect themselves by placing a blue signal in the drawhead or in the platform of the car at each end of the train to prevent the cars from being coupled to or moved while they are making repairs? A. Yes. Q. Did the plaintiff, Quick, at the time he went under the car before the happening of the accident complained of, display any blue flag or signal of any kind to protect himself from danger of the car being coupled onto or moved while he

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, notwith- the duty of the workmen engaged in repairstanding the general verdict. That judgment ing any car to put out such flag or signal for was affirmed in the appellate court. their own protection; and that engineers and all other employes whose duty it was to move cars had a right to take out all cars not displaying such flags or signals. On this issue the company introduced in evidence this rule: "Car inspectors will report to and receive their instructions from the master mechanic, but will obey all orders of the superintend

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The only controversy in this court is as to whether or not the special findings on the behalf of the defendant are so inconsistent with the general verdict as to justify the judgment rendered by the circuit court. It is insisted It is insisted on behalf of defendant in error that the special findings of the jury convict the plaintiff of such negligence on his own part as will barents 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, an 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 requiring serious repairs are promptly sent to the shops. One of the strongly contested questions of fact on the trial was whether or not it was made the duty of the plaintiff, by the rules of the company or by instructions from his foreman, to put a blue flag or signal on the car being repaired to protect himself from danger while so engaged. The plaintiff contended that the rule was, when a car was sent to the shops or repair yard, to put on it the chalk-mark indicating the repair needed, which remained until the work on it was completed, and then erased; that until the chalk-mark was taken off the car could not be rightfully moved; and that the car in question had been so marked and the marks not

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rendered for the defendant on such finding, notwithstanding the general verdict. But the jury made no such finding. What they did find was that the rules of the defendant provided that when making repairs to cars standing on the main or side tracks the workmen must protect themselves by placing signals, etc. Each of the special findings in this case may be true, and yet the plaintiff entirely free from negligence, for the simple reason he was not repairing a car on the main or side track. If the defendant desired a special finding of the jury on the question of plaintiff's care or negligence, it should have submitted to them whether or not it was his duty to put out blue flags on that car, or whether or not the rules provided for putting

of appellant are only those acquired by White under and by virtue of the assignee's deed of conveyance. The authority of the assignee to sell was the order of the bankrupt court of September 28, 1875. By that

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 being repaired. The circuit court erred in entering judgment on the special findings, and for that error the judgment of the appellate court must be reversed. The cause will be 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 remand the cause to that court with directions to it to entertain a motion for a new trial by defendant if one shall be made, and if overruled, to enter judgment on the general verdict.

and real and personal estate of the bankrupts, as in the assignee's "petition described and set forth." In his petition the assignee had represented that Francis T. Sherman had scheduled, "as his personal property, a twoninths interest in the net income to be derived from the estate of F. C. Sherman, deceased, after the debts of the estate" were paid; the nature of which interest was fully explained by the provisions of the will of F. WILLS-ANNUITIES-RENT-CHARGE-BANKRUPTCY C. Sherman, as copied in the petition. The

(131 Ill. 115)

DE HAVEN v. SHERMAN et al. (Supreme Court of Illinois. Oct. 2, 1888.)

1. Testator devised property to M. and his successors, in trust, for the lives of the testator's wife and three children, and until the youngest child of any of the testator's children should attain the age of 21 years, when a conveyance was to be made by the trustee to such grandchildren, and their heirs. The property was to be held by the trustee entire, with power to lease, and, if necessary to repair or rebuild in case of destruction, to incumber it. From the rents were to be paid expenses, interest on incumbrances, taxes, insurance, etc., and from the residue a certain sum, annually, to each of his children; the excess to be applied in discharge of the debts. Held, that the trustee took an estate in fee.

2. As the devise to the testator's children was

of a yearly sum, to be paid by the trustee out of the net rents of the realty in his possession, and devised to him upon uses, it was merely an annuity, and not a devise of rents issuing out of land, which would call for the application of the rule that a devise of rents is a devise of the land itself. 3. Nor was the annuity made a rent-charge upon the trust lands, as no power was given the annuitant to distrain in case the annuity was not paid.

order of the court was as broad as the petition, but no broader. And, although in the same petition the assignee asked "the court to adjudge whether the said interest in the said Sherman House property is in the nature of personal property, or of realty," the court does not appear to have passed upon the question thus submitted; so that, so far as we can see or know, the assignee was left free to place his own construction upon the provisions of the will, and to determine for himself whether, under the will, the bankrupt had, when his petition in bankruptcy was filed, an estate or interest in the two Sherman House lots. It is apparent that the assignee determined that the bankrupt had an interest in the realty; for he reported to the bankrupt court that he did, at the time and place of sale, after proper advertisement, offer "for sale the interest of Francis T. 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 no decision was made, and the assignee treated it in his advertisement as realty. Held, that, as the bankrupt had no interest in the testator's estate, except an annuity, which the assignee did not assume to sell, the purchaser acquired no interest therein.

Appeal from circuit court, Cook county; JOHN C. BAGBY, Judge.

It may, we think, be assumed, for the purposes of this case, that under the operation of the bankrupt law and the proceedings in bankruptcy instituted by Francis T. Sherman, his estate, both real and personal, legal and equitable, passed to and vested in his assignee. Nor could the bankrupt, by scheduling as personal property any interest in real estate that may have been vested in him by his father's will, thereby change its character, or defeat the transfer to his assignee of that interest, whatever its character. It matters not what of the bankrupt's estate the assignee may have acquired, nor what of that estate he may have been author

Bill in equity by IIenry W. Leman against Francis T. Sherman, Edwin Sherman, and Augusta W. De Haven, and others, for the construction of the will of Francis C. Sherman. Augusta W. De Haven filed a cross-bill, seting up a claim to the interest of Francis T. Sherman by virtue of a bankrupt's sale. From a decree dismissing the cross-bill for want of equity, Augusta W. De Haven ap-ized to sell, nor what of such estate he may peals.

Paddock & Aldis, for appellant.

& Moore, for appellee.

have sold and conveyed, unless he acquired, Wilson was authorized to, and in fact did, sell and convey the property rights and interests secured 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

the fee-simple, or can be satisfied by any, and what, less estate." 2 Jarm. Wills, 305, 306, and cases cited. The requirements and ne

assume that Francis T. Sherman had, at the time he was adjudged a bankrupt, an estate or interest in these lots, which passed to the assignee 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 by 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; and, until the incumbrances for improvement or repair or rebuilding should be paid, the residue of the rents and profits were to be paid, $6,000 per annum, in monthly installments, to the testator's widow, if living, and $3,000 per annum, also in monthly installments, to each of his three children, or the heirs of their body, and the excess to be applied on the indebtedness. But, when the indebtedness should be fully paid, the remainder of the rents and profits were to be paid, in monthly installments, one-third thereof to testator's widow, while living, and the two-thirds, in equal parts, to his three children, or the heirs of their body. The will took effect November 7, 1870.

But it is insisted that, by the devise to Francis T. Sherman of an annuity or yearly portion out of the net rents and profits of the trust-estate, he thereby acquired an interest in the realty, and which interest has passed to and is now vested in appellant. The general doctrine undoubtedly is that a devise of the rents and profits of land is equivalent to a devise of the land itself, and will carry the legal as well as the beneficial interests therein. 2 Jarm. Wills, 609. And we are cited to the cases of Handberry v. Doolittle, 38 Ill. 202, and Mather v. Mather, 103 Ill. 607, where this court has recognized and applied the rule. But a brief analysis of those cases is all that is necessary, as it seems to us, to 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, upon 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 Electament and disposal of all such part of my esSherman, and of the three children of the testator, and the attaining the age of 21 years of the youngest grandchild,-at which time he was required, in further execution of the trusts upon which he held the estate, to convey the lands to the testator's grandchildren; and the effect of such final conveyance would be, unquestionably, to vest the fee in such grantees.

The general principle which regulates the quantity of estate is that the trustee takes 'exactly that quantity of interest which the purposes of the trust require;" and the question, in every such case, is "whether the exigencies of the trust, as they appear on the face of the will, without reference to events subsequent to the testator's death, demand

tate his said children at my decease shall become entitled to, until the youngest of said children shall become of full age, to use said. means at his discretion," and without accounting therefor; and, in the event of the death of Rawley's children, the same portion of his estate was bequeathed to another brother, Amaziah, "for the use of said Rawley; the said Rawley, however, to have the use and control of the same." And it was there held that Rawley took an estate in the land terminable on the coming of age of his youngest child. "What is this," the court asks, “but a devise to him of the property, to have and hold until the youngest child shall come of age?" and then answers the question by saying that under a demise or conveyance.

was not made to rest alone upon such rule, for the court adds: "It is clear this [a devise of the property to his widow and children for their lives] was the intention of the testator; and, without the aid of technical terms, applicable to such matters, it is hardly possible that intention could have been more certainly expressed." And so we now say. The devise to one of the use and possession of real estate passes an estate in the land. But how marked the distinction between that case and the one at bar! Here, as we have seen, the trustee took the fee, and will hold it, certainly until after the death of Francis T. Sherman and Mrs. Marsh. The possession and use of the hotel premises were especially vested in him. In the Mather Case, the rule of law was invoked to support the testator's intention, while here, if it is to be applied, the manifest intention of the testator would be defeated, the trust broken down, and the possession, management, and control of the Sherman House property pass into hands other and different from those selected by the testator. These cases, in our judgment, fall far short of sustaining appellant's contention.

by Rawley the lessee or grantee would take and hold the premises, against the children, until the youngest became of age. Of the case at bar it must be said that there never has been, since his father's death, and there never can be while he may live, a time when Francis T. Sherman could or can, under this will, have asserted or assert over this Sherman House property any right of possession, control, or ownership, unless as the tenant of the trustee. He is powerless, by virtue of the will, to personally use and occupy, to lease and collect and appropriate rents, or to convey any interest therein which could be maintained against the trustee or his ultimate grantees. "An interest in lands," said this court in Jennings v. Smith, 29 Ill. 116, 121, "is manifestly something which may be enjoyed in connection with the land itself." In the Handberry Case every element of ownership was present; here, every element is wanting. In the Mather Case the will provided, after the payment of debts, that the residue of testator's estate should remain as his estate, as long as he had a living child. The rents, use, and interests of his estate were given, 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, sigequally 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, sufficient 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 postponed until the death of the last surviving child of the testator,-not unlike the case at bar, and until final distribution, the wife and children of the testator were given the net income of the estate, there was also, as a closer inspection shows, by the express provisions of the will, given to the wife and children the "use and interest of my estate, both real and personal," for the same period. The widow and children clearly took, not only an interest and estate in the real estate, but the right of possession. And, although the court invoked the rule of law that a devise of rents and profits will pass the land, the decision

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rents, and could distrain therefor. It is not contended that he possessed any such right; nor did he. To hold that there was here a devise of rents, would also require us to hold that a rent could issue out of a rent; and this, as has been ruled from the earliest time, cannot be. 1 Rolle, Abr. 227, paragraphs 1, 20. As there said: If a rent of £20 be granted, to be paid out of customs assigned to the grantor by the king, this cannot be a rent; for a rent does not issue out of a rent. In such case, it shall be an annuity. The case put by Lord Chancellor HARDWICKE in Stafford v. Buckley, 2 Ves. Sr. 177, namely, that King Charles I. had granted the Barbadoes islands

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